EIS Brake Parts

National Labor Relations Board - Board Decisions

Aug 25, 2000

331 N.L.R.B. 1466 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1466
EIS Brake Parts, Division of Standard Motor Prod-
ucts and International Union, United Automo-
bile, Aerospace and Agricultural Implement
Workers of America, Local 376. Cases 34–CA–
7107–1, 34–CA–7130, 34–CA–7201–1, 34–CA–
7229–1, 34–CA–7237, and 34–CA–7304
August 25, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On October 31, 1997, Administrative Law Judge Jesse
Kleiman issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief.
The General Counsel filed limited cross-exceptions and a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.
We adopt the judge’s findings that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by: (1) unilater-
ally increasing substantially the amount of subcontract-
ing of work normally performed by unit employees and
laying off unit employees as a result of that subcontract-
ing; (2) implementing its last contract proposals, includ-
ing its proposal for a group incentive bonus plan,2 with-
out having reached a lawful impasse in collective-
bargaining negotiations;3 and, (3) refusing to provide the
Union access to its facility for a safety and health inspec-
tion.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Respondent also contends that the judge’s decision evidences
bias and prejudice. Upon our full consideration of the entire record in
these proceedings, we find no evidence that the judge prejudged the
case, made prejudicial rulings, or demonstrated bias against the Re-
spondent in his analysis and discussion of the evidence.
2 We find merit in the General Counsel’s exception to the judge’s in-
advertent failure to include a specific remedy for any unit employees
who have been warned, suspended, reassigned, discharged, or other-
wise disciplined for failure to achieve standards under the new group
incentive bonus system. We shall order the Respondent to rescind such
unlawful discipline; and we shall modify the Order and notice accord-
ingly.
3 Having adopted the judge’s finding that the parties had not reached
a valid impasse in their collective-bargaining negotiations when the
Respondent unlawfully implemented its last contract offer, including its
proposed group incentive bonus plan, in reaching our decision we find
it unnecessary to rely, as did the judge, on McClatchey Newspapers,
Inc., 321 NLRB 1386 (1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997),
cert. denied 118 S. Ct. 2341 (1998).
In agreeing with the judge that the Respondent unilaterally subcon-
tracted work, laid off employees, and implemented the group incentive
bonus plan in violation of Sec. 8(a)(5) and (1), we note that the judge
found that the Union did not waive its bargaining rights concerning
those issues. We also note that the Respondent does not specifically
except to the judge’s finding on the waiver issue and does not argue
waiver on brief to the Board. We thus adopt the finding pro forma.
As explained below, however, we reverse the judge’s
unfair labor practice findings regarding the Respondent’s
unilateral combination of job classifications and creation
of a CNC Cell in the wheel cylinder department and
combination of job classifications in the subassembly
department; provision of Gatorade to employees in work-
ing areas; and provision of free pizza to reward employ-
ees in the hose assembly area for achieving 100-percent
productivity. We also find merit in the General Coun-
sel’s cross-exceptions requesting clarification of specific
provisions contained in the judge’s recommended rem-
edy, Order, and notice, and modify those provisions ac-
cordingly.
1. On or about August 25, 1995, Focus Factory Man-
ager Steve Levack informed Local Union President
Lockhart that the Respondent would be combining cer-
tain jobs in the subassembly department.4 Lockhart pro-
tested that the “company couldn’t do that, and should
negotiate with the Union about combining any jobs.”
The Respondent nonetheless proceeded with the job
combination.5 On August 31, 1995, the Union filed a
grievance regarding the Respondent’s practice of “con-
tinually changing job descriptions, combining jobs, and
posting them as setup operator positions without bargain-
ing the impact of other employees in the classification.”
In response to the grievance, the Respondent asserted
that it was following “both the contract and past practice
in job combination.”
About October 9, 1995, Plant Superintendent Scott
McGregor informed Lockhart of a new “experimental”
job combination and creation of a CNC Cell in the wheel
cylinder department. Once again, the Union protested
the combination, the Respondent proceeded to imple-
ment it, and the Union filed a grievance over the change.
However, after 10 days of operation under the wheel
cylinder job combination, the Respondent concluded that
the combination was unsuccessful, discontinued it, and
reverted to the status quo ante. Thus, in effect, the Un-
ion’s grievance over this job combination became moot;
and, in fact, the Union did not further process its griev-
ance.6

4 Thus, the events at issue arose following the expiration of the par-
ties collective-bargaining agreement on June 1, 1995, and the Respon-
dent’s unlawful implementation of its final contract offer on June 26,
1995.
5 As noted above, this combination operated satisfactorily and ulti-
mately became permanent.
6 The Union requested that its grievance regarding the wheel cylin-
der job combination be placed “on hold.” The Respondent responded
that, if there were no further action on the grievance within 30 days, the
Respondent would consider the matter settled or withdrawn.
331 NLRB No. 195
STANDARD MOTOR PRODUCTS 1467
The management-rights clause of the parties’ expired
collective-bargaining agreement gave the Respondent the
exclusive right “to introduce new or improved produc-
tion methods.” Article 12.E of that agreement spelled
out the procedure to be followed in establishing a new or
combined job, i.e., the Company must provide a copy of
the new job description to the Union, and the Union has
30 days to grieve the job classification and its slotting in
the established labor grade scale. Indeed, Lockhart con-
firmed at the instant hearing that the parties had a prac-
tice of “see[ing] how the new jobs operated and dis-
cuss[ing] the matter after the fact.” The record shows
that in the past, when the Respondent wanted to combine
jobs, it would notify the Union and then implement the
combination. The Union’s time study engineer would
observe the job combination in operation. Thereafter, the
Union would grieve the combination if it thought there
was a “problem.” The parties followed this process for
both the subassembly and wheel cylinder job combina-
tions at issue here.
When the Respondent notified the Union of its inten-
tion to combine jobs in the subassembly department,
Personnel Manager John Geoffrion informed Lockhart
that about seven unit employees would be affected by the
combination, and that only three or four employees
would be needed after the combination was accom-
plished. However, at the hearing in the instant case,
Lockhart conceded that ultimately no employees were
affected when the subassembly job combination was
fully implemented.7 Record evidence shows that the
Union pursued its grievance regarding the subassembly
combination through step 3. At step 3, the Respondent
asserted that
[t]he Company has followed both the contract and past
practice. When we have created a new job, we have
given a copy of the job description and labor grade to
the Union as per the contract. If there are no employ-
ees affected, the job is posted. If there are employees
affected, we have followed the agreed upon practice of
offering the senior employees affected by a new job the
opportunity to fill that job first before we post it.
The Union did not further pursue its grievance.
When the Respondent notified the Union of its intent
to combine jobs and create a CNC Cell in the wheel cyl-
inder department, Personnel Manager John Geoffrion
told Union Agent Lockhart that it was undertaking the
combination on “an experimental basis,” as a “potential

7 On direct examination, Lockhart testified generally that employees
were affected by the job combination. On cross-examination, Lockhart
initially identified employees Marie LaStreana and Florence Dawes as
having been affected by the job combination. When confronted by
Respondent’s counsel with evidence showing that LaStreana and
Dawes were laid off on August 21, 1995, Lockhart conceded that those
layoffs antedated the August 25 notice of the subassembly job combi-
nation and that the employees were not laid off as a result of the com-
bination.
change,” and that the Respondent did “not yet know what
would happen or if it will actually work.” As noted, the
Respondent found the wheel cylinder job combination
unsuccessful and discontinued it. On the return of wheel
cylinder operators to their preexperiment form, the Un-
ion’s grievance was settled or withdrawn before negotia-
tions could take place.
Applying Our Lady of Lourdes Health Care Center,
306 NLRB 337, 339–340 (1992), the judge found that
the Respondent violated Section 8(a)(5) and (1) of the
Act by unilaterally combining jobs in the subassembly
and wheel cylinder departments. In Our Lady of Lourdes,
the Board found a violation. However, in doing so, the
Board noted that an employer may make unilateral
changes in an expired contract where the changes were
contemplated by the quoted provision of the contract and
are “a mere continuation of the status quo.” In Our Lady
of Lourdes, the Board found a violation pursuant to that
test.
Here, the judge reasoned that the parties had not at-
tempted to modify the management-rights clause of their
collective-bargaining agreement during negotiations, and
that the terms of the management-rights clause in their
expired collective-bargaining agreement survived as
terms and conditions of employment.8 He found that,
although the management-rights clause of the expired
contract gives the Respondent the right “to introduce new
or improved production methods,” that language does not
specifically spell out the details of any change that might
be made. Thus, the judge concluded that the changes
contemplated in the subassembly and wheel cylinder job
combinations entailed the exercise of considerable dis-
cretion and were not “a mere continuation of the status
quo,” and, moreover, that the Union had not waived its
right to bargain over the changes.
We agree with the judge that the test of Our Lady of
Lourdes is controlling. However, we reach a different
result. Contrary to the judge, we find that both the Re-
spondent’s combination of subassembly department jobs
and its experimental, and ultimately abortive, combina-
tion of wheel cylinder department jobs were contem-
plated by the parties’ bargaining agreement and consti-
tuted a lawful continuation of the status quo.
As set forth above, the “status quo,” as understood by
these parties for combining jobs, such as those at issue
here, was defined by contract and well-established prac-
tice. The Respondent would give the Union notice of the
desired job changes and activate the new jobs on line.
The Union could file a grievance. Then, while the griev-
ance was pending, the parties would “see how the new
jobs operated and discuss the matter after the fact.”
Thus, the parties traditionally used the contractual griev-
ance process as the mechanism for negotiations concern-
8 Sts. Mary & Elizabeth Hospital, 282 NLRB 73, 78 fn. 1 (1986),
enfd. 808 F.2d 1211 (6th Cir. 1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1468
ing the establishment of new or combined jobs after the
new jobs were in operation and the parties had had an
opportunity to observe and analyze the effects of the
combined jobs on production and on the unit employees.
That is precisely the procedure followed by the parties in
this case.
Regarding the subassembly job combination, the par-
ties engaged in negotiations regarding the change. The
fact that the negotiations occurred after the job combina-
tion was implemented was consistent with the parties’
established practice. That is, the parties negotiated to
ascertain the actual effect of the combination on opera-
tions and the impact of the change on employees. As
noted by the Respondent in its stage-3 grievance re-
sponse, no employees were affected by the subassembly
department job combination.9 The Respondent’s remain-
ing obligation, if no employees were affected, was to
post the new jobs. Neither the Union nor the General
Counsel has alleged that the Respondent failed to post
the new jobs or that there were any irregularities in con-
junction with the posting process.10
Accordingly, we find that the combination of jobs in
the subassembly department meets the test set forth in
Our Lady of Lourdes, supra. That is, past practice con-
templated that the Respondent could introduce new or
improved production methods like the job combination;
and article 12.E established the procedure for making the
change. The parties adhered to those procedures and,
thus, “mere[ly] continued the status quo” following the
expiration of the contract. The subassembly department
job combination, thus, was lawful; and we reverse the
judge’s finding to the contrary.
For the same reasons, we reverse the judge’s finding
that the wheel cylinder department job combination and
creation of a CNC Cell were unlawful. There, the Re-
spondent notified the Union that it wanted to make the
change “on an experimental basis” and unilaterally im-
plemented the change. The Union filed a grievance to
preserve its option to “discuss the matter after the fact.”
In other words, the parties continued the status quo by
following their established procedure for combining jobs.
No negotiations ultimately occurred regarding the wheel
cylinder combination; however, this was because the
Respondent voluntarily returned to the status quo. The
lack of negotiations was not the result of a refusal by the
Respondent to negotiate. Rather, the need to negotiate
issues arising out of the “experimental” combination
became moot when the Respondent discontinued the
combination and returned the wheel cylinder department
operation to its preexperiment form, before any unit em-

9 The judge implicitly found that no employees were affected.
10 It is of no consequence, in the facts of this case, whether a man-
agement-rights clause, waiving the union’s right to bargain, survives
the expiration of a contract. In the instant case, the parties bargained,
albeit after the change, and this was consistent with past practice.
ployees could be affected. The Union recognized that
the matter was moot by not processing its grievance.
Plainly, the Respondent’s manner of conducting the
wheel cylinder job combination was consistent with the
parties’ established practice. Further, there can be no
clearer manifestation of maintenance of the status quo
than the return of wheel cylinder operations to pre-
experiment form, after the experimental job combination
proved unsuccessful. For these reasons, we find lawful
the Respondent’s experimental wheel cylinder job com-
bination and dismiss the relevant complaint allegation.
2. We also reverse the judge’s finding that the Re-
spondent violated Section 8(a)(5) and (1) on specified
dates in July 1995 by providing drinks (Gatorade)11 to
employees in working areas and granting a bonus meal
(pizza) to employees in the hose assembly area to reward
them for achieving 100-percent productivity.
The Respondent had a longstanding policy of restrict-
ing food and drinks on the plant floor. The weather had
been unusually hot during the summer of 1995, and em-
ployees complained about high temperatures on the
workfloor. At a July 20, 1995 meeting, the Joint com-
pany/union safety committee discussed the employees’
heat-related complaints, including requests that cold
drinks be provided on hot days. The judge found that
matters relating to health and safety are subjects com-
monly discussed by the safety committee, and that loss of
potassium on hot days was considered a health issue.
The use of Gatorade to counter the ill effects on em-
ployee health was the Respondent’s response to this con-
cern.
Accordingly, the next day Operations Manager Mike
Paulus informed Local Union President Lockhart that the
Company would set up Gatorade stations on the plant
floor when the temperature exceeded 90 degrees, but that
the Respondent’s general policy of restricting food and
drinks would otherwise remain unchanged. Lockhart
protested that he thought providing Gatorade was “a bad
idea because it appeared to contradict the existing rule.”
Paulus responded that it was a safety issue.12 The Re-
spondent immediately announced and implemented its
Gatorade policy.
Relying on Stone Container Corp.,13 the judge found
that the Gatorade policy related to terms and conditions
of employment, i.e., a potential health risk. Accordingly,
he found that the Respondent was not privileged to estab-
lish the policy unilaterally. Moreover, especially in view
11 Gatorade is a brand-name beverage, which is touted as a source
for replacing nutrients lost from the body through exertion and perspi-
ration.
12 According to Paulus, Lockhart did not seek to negotiate the issue
and, in any case, no negotiations took place over the issue because, in
his eyes, safety issues are not negotiable. The judge found that the
record is unclear as to whether the parties engaged in “actual bargain-
ing” over the Gatorade policy. In view of our disposition of the issue,
infra, we do not find it necessary to resolve this evidentiary ambiguity.
13 313 NLRB 336 (1993).
STANDARD MOTOR PRODUCTS 1469
of the Respondent’s other serious unfair labor practices,
the judge found that the provision of Gatorade to em-
ployees was not de minimis and was a benefit over which
bargaining was required.
We disagree. There can be no doubt that issues
regarding workplace health and safety—here, concerns
about the health effect on employees excessive heat—are
terms and conditions of employment and, thus, manda-
tory subjects of bargaining that cannot be unilaterally
changed by an employer. We find that here, however,
the development of the Respondent’s “Gatorade policy”
was a direct result of the parties’ collective bargaining,
e.g., their contractually established joint safety commit-
tee process. Employees’ heat-related health and safety
concerns were resolved through the efforts of the com-
mittee during a regular safety meeting. The General
Counsel does not contend that the committee was an in-
appropriate forum for addressing the concerns. Thus, we
find that the Respondent’s institution of its Gatorade pol-
icy was consistent with its collective-bargaining obliga-
tion. In any case, we find that the effect on employees of
the Respondent’s implementation of this policy is at most
de minimis. That is, it is narrowly tailored to address a
specific health and safety concern, limited to instances
involving clearly defined, extreme weather conditions,
and otherwise expressly leaves undisturbed the Respon-
dent’s general prohibition against food and drink on the
plant floor.14
We similarly find lawful the Respondent’s decision to
provide pizza to employees in the hose assembly area, in
recognition of achievement of 100-percent productivity.
It appears that the pizza lunch was a spontaneous offer-
ing after the fact, and not a “carrot” held out to employ-
ees to induce higher productivity. The record shows that
the Respondent had a history of occasionally, and appar-
ently randomly, giving small food items to employees in
situations such as the completion of inventory and the
achieving of departmental objectives.
The Board has found that an employer’s occasionally
providing small food items to employees in circum-
stances similar to those present here is not a sufficiently
substantial benefit to constitute “terms and conditions of
employment” for purposes of sustaining a violation of
Section 8(a)(5). Benchmark Industries, 270 NLRB 22
(1984), affd. 760 F.2d 267 (5th Cir. 1985). Accordingly,
we find that the Respondent’s providing of pizza to the
employees in the hose assembly fell within this rule. In
addition, it was not dissimilar from prior conduct.
ORDER
The National Labor Relations Board orders that the
Respondent, EIS Brake Parts, Division of Standard Mo-

14 In agreeing with this dismissal, Member Brame agrees that the
implementation of the Gatorade policy was at most de minimus and he
finds it unnecessary to decide whether it was also a direct result of the
parties’ collective bargaining.
tor Products, Hartford, Connecticut, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally implementing the terms and conditions
of its last proposal for a collective-bargaining agreement.
(b) Unilaterally implementing a new group incentive
bonus plan and warning, suspending, discharging, reas-
signing, or otherwise disciplining employees for failure
to achieve standards under the group incentive bonus
system.
(c) Unilaterally subcontracting work normally per-
formed by unit employees since March 6, 1995, and lay-
ing off unit employees as a result of such subcontracting.
(d) Refusing the Union access to its facility for a safety
and health inspection.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request by the Union, rescind the terms and
conditions of its last proposal for a new collective-
bargaining agreement implemented by the Respondent
on June 26, 1995, and the new group incentive bonus
plan; reinstate the terms and conditions of employment
which existed prior to this date; bargain with the Union
in good faith until an agreement or impasse is reached;
rescind any warnings, suspensions, discharges, reassign-
ments, or other discipline issued to employees for failure
to achieve standards under the group incentive bonus
system; and make whole unit employees for any loss of
earnings or benefits they may have suffered as a result of
the Respondent’s unlawful actions as set forth in the
remedy section of the administrative law judge’s deci-
sion.
(b) Rescind the decision to subcontract work normally
performed by unit employees since about March 6, 1995,
restore such work to them, and make them whole for any
loss of earnings or benefits they may have suffered as a
result of the Respondent’s unlawful actions, as set forth
in the remedy section of the administrative law judge’s
decision.
(c) Within 14 days of the date of this Order, offer unit
employees who were laid off or discharged because of
the Respondent’s unlawful subcontracting of unit work
immediate and full reinstatement to their former jobs or,
if such jobs no longer exist, to a substantially equivalent
position without prejudice to their seniority or any other
rights and privileges enjoyed; and make them whole for
any loss of earnings or any other benefits suffered as a
result of their layoff or discharge since March 6, 1995, in
the manner set forth in the remedy section of the admin-
istrative law judge’s decision.
(d) In the event the Respondent’s unfair labor practices
resulted in discipline, layoff, or discharge of employees,
or other change in unit employees status, the Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1470
shall make whole any affected employees for any loss of
earnings or benefits they may have suffered because of
the Respondent’s unlawful actions in the manner set
forth in the remedy section of the administrative law
judge’s decision and, within 14 days of this Order, offer
such employees immediate reinstatement to their former
jobs, if applicable, or if such jobs no longer exist to sub-
stantially equivalent positions without prejudice to their
seniority or any other rights or privileges enjoyed by
them.
(e) Grant access to the Respondent’s facility by a
health and safety inspector designated by the internal
Union on dates sufficient to permit an inspection of the
Respondent’s facility for health and safety hazards to
employees.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discipline,
layoffs, discharges, or other changes in the status of unit
employees resulting from the Respondent’s unlawful
actions and any wage and benefit changes resulting
therefrom; and within 3 days thereafter notify such em-
ployees in writing that this has been done and that the
Respondent’s unlawful actions will not be used against
them in any way.
(g) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(h) Within 14 days after service by the Region, post at
its facility in Berlin, Connecticut, copies of the attached
notice marked “Appendix.”15 Copies of the notice, on
forms provided by the Regional Director, after being
signed by the Respondent’s representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail at
its own expense a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent since February 1, 1995.
(i) Within 21 days after service by the Region, file
with the Regional Director for Region 34 a sworn affida-
vit of a responsible official on a form provided by the

15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government

The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT unilaterally implement the terms and
conditions of our last proposal for a collective-bargaining
agreement or a new group incentive bonus plan without
affording the Union an opportunity to bargain with re-
spect to this conduct performed by unit employees and
lay off unit employees as a result of such subcontracting
without affording the Union on opportunity to bargain
with respect to such conduct.
WE WILL NOT deny the Union access to our facility
for a safety and health inspection.
WE WILL NOT in any like or related manner restrain
or coerce our employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
WE WILL rescind the terms and conditions of our last
proposal for a collective-bargaining agreement and our
new group incentive bonus plan and bargain with the
Union upon request regarding these matters.
WE WILL restore the unlawfully subcontracted unit
work to the bargaining unit employees and on demand
offer to bargain with the Union over any subcontracting
of unit work.
WE WILL allow the Union access to our facility for a
safety and health inspection.
WE WILL, within 14 days from the date of this Order,
offer employees who have been laid off, discharged, or
otherwise suffered any change in position, duties, or
status, full reinstatement to their former jobs and duties,
or if those jobs or duties no longer exist, then to a sub-
stantially equivalent position, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
WE WILL make employees whole for any loss of earn-
ings and other benefits resulting from the Respondent’s
unlawful actions, less interim earnings where applicable,
plus interest.
STANDARD MOTOR PRODUCTS 1471
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful lay-
offs or discharges, or discipline of employees, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the unlawful ac-
tions will not be used against them in any way.
EIS BRAKE PARTS, DIVISION OF
STANDARD MOTOR PRODUCTS
William E. O’Connor, Esq., for the General Counsel.
Thomas M. Cloherty, Esq. (Murtha, Culling, Richter & Pin-
ney), for the Respondent.
Sanford Kay, Esq., for Standard Motor Products.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. Upon the ba-
sis of charges filed by International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
Local 376, (the Union), on June 13, 1995 (Case 34–CA–7107–
1), June 28, 1995 (Case 34–CA–7130), August 25, 1995 (Case
34–CA–7201–1), September 15, 1995 (Case 34–CA–7229–2),
September 19, 1995 (Case 34–CA–7237), and November 21,
1995 (Case 34–CA–7304), against EIS Brake Parts, Division of
Standard Motor Products, (Respondent or the Company), an
order consolidating cases, consolidated complaint and notice of
hearing was issued on May 10, 1996, alleging that the Respon-
dent has been failing and refusing to bargain collectively and in
good faith with the Union as the exclusive collective-
bargaining representative of its employees in violation of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act (the
Act). By answer timely filed the Respondent denied the mate-
rial allegations in the consolidated complaint.
A hearing was held before me in Hartford, Connecticut,
commencing on September 9 and ending September 27, 1996.
Subsequent to the closing of the hearing the General Counsel
and the Respondent filed briefs.
On the entire record, and the briefs of the parties, and upon
my observation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation, with an office and place of
business in Berlin, Connecticut (facility), is engaged in the
manufacture and sale of automotive brake parts, including
wheel cylinders and master cylinders which it primarily sells in
the “aftermarket” or “replacement” market to ware distributors,
retail accounts, master installers, and program buying groups.
Because of the unpredictability and volatile nature of its mar-
ket, the Respondent has historically supplemented its own pro-
duction with the purchase of some parts from other manufac-
turers to meet its production needs when there is an unexpected
“surge in business all in one shot.” In addition the Respondent
has historically never itself manufactured a certain type of
wheel cylinder product, known as “short line.” The Respon-
dent annually, in the conduct of its business operations, sold
and shipped from its facility goods valued in excess of $50,000
directly to points outside the State of Connecticut. I therefore
find that the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The consolidated complaint alleges, and the Respondent ad-
mits that International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, Local 376 are
labor organizations within the meaning of Section 2(5) of the
Act and herein jointly called the Union.1
Since about 1962, the Union has been the designated exclu-
sive collective-bargaining representative pursuant to Section
9(a) of the Act, as recognized by the Respondent in a unit of:

All production and maintenance employees employed by Re-
spondent at its Middletown and Berlin, Connecticut facilities,
but excluding office and plant clerical employees, timekeep-
ers, engineering employees, draftsmen, professional employ-
ees,guards, watchmen, foreman, assistant foremen, and super-
visorsas defined in the Act.2

Since then the Union has been recognized as such by the Re-
spondent, this recognition being embodied in successive collec-
tive-bargaining agreements, the most recent of which was ef-
fective from June 2, 1992, to June 1, 1995.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges that the Respondent vio-
lated Section 8(a)(1) and (5) of the Act by failing and refusing
to bargain collectively and in good faith with the exclusive
collective-bargaining representative of its employees by: since
about July 12, 1995, refusing the Union requested access to its
facility for a safety and health inspection; since about March 6,
1995, subcontracting work normally performed by unit em-
ployees, and has laid off employees as a result of that subcon-
tracting; since about June 26, 1995, implemented the terms and
conditions of its last proposal for a new collective-bargaining
agreement; about July 13, 1995, granted a bonus meal to certain
unit employees for achieving production goals; about July 21,
1995, changed its plant rules by providing drinks to employees
in working areas; on about August 25, 1995, combined job
classifications in the subassembly department; about October 9,
1995, combined job duties and created a CNC Cell in the wheel
cylinder cepartment; and about October 30, 1995, implemented
a new group incentive bonus plan, all without affording the
Union an opportunity to bargain with respect to such conduct
and without having reached a lawful impasse.
A. The Evidence
1. Background
Beginning in 1987 the Respondent and the Union engaged in
a dispute over the Respondent’s decision to relocate its rubber
manufacturing operation from Middletown to its plant in Puerto
Rico. After the Union filed unfair labor practice charges and
complaint issued in Case 39–CA–3562 on May 12, 1988, the
parties entered into a settlement agreement called the “Effects
Package” whereby the Union agreed to withdraw the unfair
labor practice charge, with the settlement agreement including a
statement of intent by the Respondent concerning future trans-
fers of unit work:

1 In the title of these proceedings this is unclear.
2 It is undisputed that the Respondent closed its Middletown, Con-
necticut facility several years ago and no longer has any unit employees
located there.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1472
ATTACHMENT A
The Company wishes to advise the Union that for the duration
of the current Collective Bargaining Agreement, it does not
intend to transfer any work currently and customarily per-
formed at the Middletown and Berlin facilities other than the
job previously announced to the Union. These are limited to
the Rubber Departments and Distribution Departments, the
Cable Assembly Department and Wheel Cylinder Kit Packag-
ing.

In June 1988 the parties also entered into early contract ne-
gotiations well before the existing contract’s expiration date. A
“critical issue” for the Respondent was its desire to re-study
jobs in the wheel cylinder and master cylinder departments.
The parties negotiated changes in the contract, which included
a clause entitled “Job Evaluations, Piecework and incentive
rates,” and a complex process entitled “Rerating of Incentive
Jobs.” Included in the details negotiated were the personal
fatigue time allowances and agreement to establish a third shift.
Moreover, the Union was particularly concerned about job
security in light of the transfer of work to Puerto Rico, and the
parities negotiated a letter of agreement, which came to be
known as the Connecticut Operations Agreement. The agree-
ment called for the formation of a “competitiveness” commit-
tee, called the “joint committee,” by January 1, 1989, to consist
of two members of the Union and two from management, and
would be called into action whenever the Respondent was con-
fronted with a noncompetitive situation threatening its business.
The first step to be followed when the Respondent faced such a
situation was that the Respondent would notify the Union about
it, discuss it then the joint committee would go out and evaluate
the area where the Respondent indicated an interest in relocat-
ing or subcontracting. Part of the committee’s responsibilities
was to look at jobs on an ongoing basis to evaluate if the times
allotted for those jobs, and the costs associated with them,
could be reduced and the committee would then report its find-
ings. The next step would come if the Respondent were to
decide that it would relocate or subcontract the work because it
was noncompetitive. If so, it was obligated to supply the Union
with all the underlying information and/or cost analysis related
to its decision, and the parties would meet to consider alterna-
tives and to bargain over that decision. On completion of that
bargaining, if the parties were unable to reach agreement, then
the Respondent would proceed with its plans, and negotiate
over the effects of its decision. It was never expressed during
these negotiations that by entering into that agreement the Un-
ion was waiving its right to bargain to impasse before the im-
plementation of any transfer or subcontracting of unit work.
In late 1991 the parties again met for early negotiations. The
Respondent was faced at that time with an antiquated facility in
Middletown which it was closing, while at the same time it
wanted to consolidate the distribution and manufacture of its
hydraulic operations in either Virginia or Connecticut. The
Respondent proposed a two-tiered wage rate in distribution and
for “red-circling” wage rates for employees from the Middle-
town plant, which was closed, who were transferred to the Ber-
lin Plant to lower labor grades. The Union agreed to these pro-
posals. The Union also cooperated with the Respondent in the
1991 negotiations in lowering medical costs by seeking, and
ultimately getting, a better plan at less cost.
Finally, the parties slightly altered the language in the Con-
necticut Operations Agreement by extending it to 1995, and by
calling for the formation of a joint committee “as soon as
needed.” That agreement, in its entirety, states:
LETTER OF AGREEMENT
November 5, 1991
Re: Connecticut Operations Agreement
The Company has committed to the Union that it in-
tends to maintain its facilities in the Middletown/Berlin
area until June 1, 1995. During that period, the Company
does not intend to transfer any work currently and custom-
arily performed at its Connecticut facilities other than the
jobs previously announced to the Union on May 12, 1988.
It is understood, however, that if the Company is con-
fronted with a situation that puts it in a non-competitive
position that must be responded to in order to protect its
business, it will discuss the situation with the Union. A
joint Committee will be formed as soon as it is needed
whose purpose will be to consider alternatives to make the
Company’s costs/jobs more competitive. The Committee
will be called into action when the Company believes it
has a situation requiring the Committee’s attention. If the
Company feels that it has no reasonable alternative other
than to transfer or contract out a substantial part of its
work, it will give the Union the data it relied on and the
parties will meet promptly to negotiate the decision. If
these negotiations have not been able to resolve the matter,
then the Company will proceed with its plans as above.
The Company will then negotiate with the Union over the
effects.

The collective-bargaining agreement was made effective
from June 2, 1992, through June 1, 1995.
2. Negotiations for a successor collective-bargaining
agreement
As noted above, the parties had successfully entered into
early negotiations for successor labor agreements in 1988 and
1991. In June 19943 the parties again entered into early nego-
tiations for a successor collective-bargaining agreement with
the current agreement to expire June 1, 1995.
The Respondent being faced with losses in its wheel cylinder
products due to the lower prices of its competitors, Leonard
Friedman the Respondent’s director of human resources, called
Russ See, the president of Local 376, and told him about the
problems in the wheel cylinder product line, and requested a
meeting to discuss its noncompetitive situation. The meeting
took place on June 7, 1994. See attended with the Union Nego-
tiating Committee, International Representative Richard Cardi-
nal, and Local Financial Secretary/Business Agent Steve
Edgerly. Attending for the Respondent were Friedman, Vice
President/General Manager Dan Carboni, General Operations
Manager Mike Paulus, Personnel Manager John Geoffrion, and
Sanford Kay, Standard Motor’s vice president for human re-
sources. Carboni explained to the Union that there was a price
war due to both offshore and domestic competition while Pau-
lus explained the differences in cost per unit for wheel cylin-
ders between the Respondent’s and its competitors, and indi-
cated that the Respondent needed to save about $1 million in
labor costs per year based on project volume. Kay stated that it
was not the employees’ fault, but that the parent corporation,

3 All dates hereinafter refer to 1994 unless otherwise noted, until p. 9
fn. 6.
STANDARD MOTOR PRODUCTS 1473
Standard Motor Products, was concerned about the competition
and the long-term future of the EIS parts division, and felt
something had to be done to address the problems. According
to Paulus there were two basic choices. (1) To achieve cost
savings and continue to manufacture wheel cylinders; or (2)
become a “reboxer,” by subcontracting the production of wheel
cylinders and simply reboxing them for sale. Friedman also
explained his view of the Respondent’s choices: (1) either
ignore the problem, keep the prices as they are and hope to
keep the business or (2) subcontract and rebox, or (3) move.
See was unconvinced and responded that he had heard the
“waltz” or “song” before. The Respondent then distributed
various materials to the Union, including a “confidential” list of
“savings potential” the list consisting of give-backs by the Un-
ion that added up to about $962,000 in projected savings.
Friedman said that these were “avenues” that the Union could
look at to make savings and were “only suggestions,” and that
the list was not “for publication:” See responded to the sug-
gested concessions by saying there were other ways than this to
deal with the problem, and reminded the Respondent of the cost
savings assistance the Union had given in the past by procuring
a cheaper medical plan, while avoiding increased costs for em-
ployees.
Russ See explained that it is standard UAW policy when an
employer is seeking relief, that the employer must be prepared
to exhibit its books to the Union to justify such relief and that
the Union would send a letter requesting such information, and
if the Respondent showed that it needed relief, the Union would
“certainly want to Help.” See also said that he was not pre-
pared at that point to do anything and wanted to know what
savings the Respondent was prepared to give on the manage-
ment side. Friedman indicated that he hoped the information
requests would not be “so huge” as to slow the process down
unnecessarily.
On June 14, 1994, Russ See did send a letter requesting infor-
mation and asking that the information be sent to the Interna-
tional, because it was standard union policy that an International
auditor be assigned to such a situation, where an employer is
seeking concessions, and a confidentialty agreement between the
International and the employer is sought. On July 15, 1994,
Friedman sent some information to the International’s auditing
department where the Respondent’s case was assigned to Interna-
tional Auditor Bruce DeCastro. Friedman called him on July 29
and DeCastro informed him that he had received the materials the
week of July 18, and had called the Local and expected to work
with Steve Edgerly. He had also expected to be called by the
Local before it closed for vacation, but that had not occurred.
Meanwhile, the Respondent also shut down for vacation during
the first two weeks of August but eventually, someone from the
Local called and arranged for DeCastro to visit the facility on
August 25, 1994.
On August 25, 1994, DeCastro met with the Respondent’s
divisional comptroller, Lawrence Mucherino, Paulus, and
Friedman. DeCastro, while at first skeptical about the informa-
tion which had been provided to him previously, became more
confident that the voluminous information provided was accu-
rate. He did not, however, elect to take notes of the substantial
amount of information he received that day, and requested cop-
ies of backup records instead. The Respondent balked at the
idea of providing copes of such records to DeCastro without
having a formal signed confidentiality agreement, and DeCas-
tro agreed to sign one. The Respondent drafted an agreement
and faxed it to DeCastro on August 29, 1994, and since the
UAW attorneys had to review it, there was a slight delay in
reaching agreement. However, after some discussion between
Friedman and DeCastro, Friedman faxed another proposed
confidentially agreement on September 12, 1994, and it was
signed on September 13. On completion of that agreement on
September 16, Friedman sent by mail the requested backup
information, which had been processed by Mucherino. On
September 23 DeCastro spoke again with Friedman, and re-
quested additional back-up information, which Friedman sent
on September 30. In a cover letter on that date Friedman told
DeCastro, “I hope to hear from you next week as we discussed
so we can get on with the process which has already taken over
three months just to reach this point.”
However, previously on September 12 DeCastro had sent to
Dick Cardinal, with a copy to Russ See, a memorandum outlin-
ing his findings to date, and advising them “to treat the problem
seriously. If a deal could be reached that combined cost reduc-
tions with some sense of job security and continued production
of all current product lines, we should probably consider it.”
He closed by informing them that he would update his report
“as more information becomes available.”
See appeared confused by DeCastro’s analysis and so he
called DeCastro and asked him to explain it “in layman’s lan-
guage” since he doubted that all the losses were in cylinders
and his concern was whether the relief sought by the Respon-
dent would “plug the hole or put a band-aid on it.” DeCastro
told See that he was “not through yet,” and he was “having
problems” with the Respondent, that there was some informa-
tion that had not yet been given to him, and he was waiting for
it. Cardinal also called DeCastro after receiving the September
12 memorandum and asked DeCastro if he was receiving fur-
ther resistance to his information requests, and DeCastro said
no, but that the Company had not yet responded and was in
effect, “dragging their feet.” DeCastro told him that the Com-
pany’s economic problem was serious, from which Cardinal,
given his long experience in dealing with DeCastro, inferred
that the Union should “step up” and address the situation.
As a result of DeCastro’s investigation, the Respondent came
to learn that the situation in hydraulics was worse than it
thought in June 1994. On October 6 DeCastro placed a call to
Mucherino, who wasn’t available, and spoke “off-the-record”
to Paulus instead. He informed Paulus that if the financial in-
formation provided was “as stated,” then the million dollars
that the Respondent was seeking in relief would not be enough
based on the current situation. Paulus responded that the mil-
lion dollars had only been for the wheel cylinders, but that
“similar pressures” were building in other areas, hoses and
master cylinders. DeCastro asked Paulus if he had given up
hope of concessions from the Union, and whether that was the
reason for “cracking down” on the unit, referring to warnings
and dismissals being given to unit employees. DeCastro said
that management was not making it easy to ask the employees
to help the Respondent and Paulus responded that he had not
given up hope, and that management was “cracking down” only
as a good business practice which should have been followed
“all along.”
On October 17 DeCastro called Paulus directly,4 and sug-
gested setting up a “team,” whereby either See or Dick Cardi-

4 Paulus stated that he viewed DeCastro as “trying to be a facilita-
tor.” He also testified that DeCastro had said that See “can be a little
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1474
nal, Paulus, and himself would discuss productivity issues, to
further explain the extent of the Respondent’s problems, and to
discuss how to resolve these issues. DeCastro told Paulus that
morale was low in the plant, and it was going to be very diffi-
cult to sell the “package” to the unit employees. DeCastro said
that he had advised the Union that the Respondent was in trou-
ble, and its problems would not go away and that “delay tactics
aren’t in the best interest” of the parties. DeCastro also indi-
cated that he still had “some nagging doubts” about numbers
that were unaudited and prepared strictly for the Union and said
he was to speak with Mucherino the next day. DeCastro also
explained to Dick Cardinal that he was uncomfortable with the
Respondent’s accounting system, and the Respondent’s ac-
countant had not been able to answer his questions, and needed
to get back to him.
Paulus reported to Friedman about his conversation with
DeCastro and DeCastro’s request to set up a meeting between
Paulus and either See or Cardinal. However, Friedman testified
that he, “just never [got] back to him” about that request and
Friedman never explained why he failed to respond to DeCas-
tro’s request. While professing to being “never really quite
sure of DeCastro’s role,” Friedman never expressed any interest
in tapping DeCastro’s expertise nor exploring what DeCastro
might be able to achieve.5
DeCastro did call Mucherino and requested some additional
backup information which Mucherino faxed him on November
3, 1994. After receiving this information DeCastro drafted
another memorandum that day which he sent to Cardinal and
See, and which reaffirmed his recommendation to treat the
problem seriously. See was at the International Union’s elec-
tion in Dearborn, Michigan, at that time, and received the letter
on his return on November 7.
While Friedman knew that Russ See was in Michigan at that
time, he mistakenly thought See would be meeting with DeCas-
tro. Friedman called See on November 7 and was advised by a
secretary that See was at a meeting and “might be back by end
of the day,” but “would be unavailable” on November 8, and
had a meeting on November 9. She did not know See’s sched-
ule after that and See did not return Friedman’s call that week.
Friedman sent a letter on Friday, November 11, to See in
which, after recounting his version as to what had transpired
since June 1994 stated:

It is our understanding that your auditor has shared
with you his findings and recommendations but to date
you have not responded to our repeated requests to negoti-
ate.
As a result of your lack of response we must conclude
that we are at an impasse and we have therefore begun to
take and have taken appropriate steps in order to protect
our business.
Initially, we have increased our purchases of low cost
product from outside suppliers which will have the effect
of not restarting the Third shift in January. We are con-

difficult to deal with . . . and had advised the Union that we were in
trouble and that it was not advisable to go into any further stall tactics.”
5 DeCastro had great experience and expertise in helping troubled
companies. His method was to deal directly with manufacturing man-
agement personnel, without the presence of labor relations personnel, in
developing and “breaking through alternative approaches to these kinds
of situations.” Indeed, as noted above, Friedman admitted that it was
DeCastro’s investigation that led the Respondent to grasp the gravity of
its own situation.
tinuing to evaluate our sales forecast and results to deter-
mine if further layoffs will become necessary.
At this point we honestly feel we have no reasonable
alternative. More than five (5) months have passed and
we’re still not negotiating and our losses are mounting
each day.

It appears that Friedman makes no direct request for negotia-
tions in that letter but instead, declared impasse, announces the
Company’s intent to subcontract and threatens layoffs. Nor
does the letter indicate when or how the Respondent had made
“repeated requests to negotiate.” There is no evidence in the
record that the Respondent made any requests to the Union to
“negotiate” since the June 7, 1994 meeting. While Friedman
had expressed to DeCastro in his September 30 letter that he
hoped to hear from him the following week so they could get
on with the process begun in June, it was DeCastro who re-
quested to Paulus that a meeting be set up, but Friedman “never
got back to him on that.”
On November 14 Russ See called Friedman and told him
that he had not returned his November 7 call because he
thought Friedman was calling about a grievance, and he wanted
Edgerly to handle it. Each accused the other of “dragging”
their feet “and Friedman said the Company felt “the ball was in
his court to come to the table.” Friedman asked if he had met
with DeCastro and See said he had not, but that he had received
a report from him and Friedman suggested that See meet with
Dan Carboni, but See refused. Instead, See said he thought
Carboni and Paulus were the problem. Friedman denied that,
and said the market place was the problem. Friedman asked if
the Union was ready to meet, and See said that Friedman
should send a letter whereupon Friedman said he already sent a
letter requesting negotiations. See said Friedman would hear
from him.
Unbeknownst to see Friedman had held a meeting earlier that
day with the Local’s negotiating committee to bring it up to
date on what had transpired and the fact that “I had called him
[See] on the 7th and a week had passed and he had not even
returned an urgent phone call.” After See discovered this meet-
ing had taken place, he called Friedman on November 15 and
asked him if he held a meeting with the negotiating committee
in the plant the day before. Friedman said it was “to bring the
negotiating committee up-to-date, that we had been losing
money,” and that he had tried to reach See on November 7 but
that See wasn’t returning his phone call. Friedman explained to
See that the situation was very urgent, and they were not trying
to go around See or negotiate with the committee; but were
trying to get the committee, to understand the situation the
Company was in and “maybe they could light a fire under him
to come to the table because he wasn’t ever returning my phone
calls.” Friedman asked See if he was ready to come to the bar-
gaining table, and See said he would hear from him in the mail.
See sent a letter that day to Friedman in which he took ex-
ception to the statements in Friedman’s November 11 letter
declaring impasse, and threatening to eliminate the third shift,
and also stated:

If the company is that anxious to sit down with Local 376
representatives to discuss relief, all it takes is a letter re-
questing a meeting to address this issue instead of meeting
with the in-plant committee trying to undermine the leader-
ship of local 376.I look forward to any written request made
by the company.

STANDARD MOTOR PRODUCTS 1475
In a subsequent phone conversation, Friedman informed See
that he had not heard from him, and see said he had sent him
the letter which Friedman denied getting, so See faxed him
another copy on December 5. In the meantime, Friedman had
apparently sent a letter to See dated December 2 in which he
similarly claimed not to have heard from See for 2 weeks and
informing him that the Company had announced “additional
layoffs in the wheel cylinder department and in two other de-
partments that service those jobs.” He recounted how the
Company’s losses were now beyond the wheel cylinder product
line, and stated, “We will be reviewing other options to stay our
losses. The problems we are having are not going away and
must be addressed.” Friedman did not request negotiations in
that letter, and instead simply threatened to take action (i.e.,
layoffs). On December 5 Friedman sent another letter to See
thanking him for faxing the November 15 letter, and claiming
again not to have received it before. In that letter he noted:
“Since Dan Carboni and Mike Paulus are away on a sourcing
trip to China this week, I would prefer we meet as soon after
Tuesday, December 13 as possible to address our mutual prob-
lems.”
The parties met on January 11, 1995,6 and Friedman began
by recapitulating what had taken place to date and said that the
Company’s losses continued to mount.7 He said that the Com-
pany needed relief as soon as possible, and that they were
afraid that the Company would have to “write off 1995 as an-
other big losing year.” See asked what the Respondent was
suggesting and Friedman said that they wanted to open up the
contract early, but “because of the Company’s non-competitive
position, have a deadline of February 28, instead of June 1,” the
contract expiration date. If there was no resolution at that
point, then the Company would subcontract wheel cylinders.
However, See did not approve of the idea of an early deadline
“right from the beginning” and according to Friedman, See said
“I don’t believe you can legally put demands on the table that I
cannot meet, and if I cannot meet them, you can subcontract.”
Friedman responded that “[w]e have rights under the existing
contract to do subcontracting.” Friedman told to the Union that
the Company wanted a deadline of February 28 so that the sub-
contracted orders could be received by June. However, Fried-
man stated at the hearing that the Respondent chose that dead-
line because the contract was to expire on June 1, and the Com-
pany wanted to have an outside source in case the Union struck.
This reason had not been given to the Union previously.
See explained that he would have to go to the membership to
get approval and asked what exactly it was that the Company
was proposing, stating, “Let me make sure I understand this.
You want me to tell the membership we open up the contract
early, with a February 28 deadline, and if we don’t have it
solved by February 28, you’re going to subcontract?” Fried-
man concurred that was the Company’s position and that the
Respondent was concerned “about the Union’s belief in the
numbers” because See had indicated that his accountant wasn’t
sure about them. Friedman felt the Union wasn’t accurately

6 All dates hereinafter refer to 1995 unless otherwise so stated.
7 Friedman testified that he also told the Union that the losses
amounted to $5.2 million per year, and that the Company wanted $1.7
million in concessions from the Union. However, both his own bar-
gaining notes and those of John Geoffrian, chief note taker for the
Respondent, show that this subject was first broached at the February 1
meeting, when the Respondent presented its list of “Cost Savings Op-
erations” to the Union.
presenting the Company’s position to the membership, so See
invited Friedman and Paulus to speak directly to the member-
ship at a shop meeting the following day to explain the situa-
tion. Friedman and Paulus did speak directly to the member-
ship on January 12. The Local had never asked Company offi-
cials to speak to the membership before.
Despite their presentation, the membership rejected the
Company’s proposal to open the contract with a deadline of
February 28, but voted instead to open it up with no deadline
other than June 1, 1995. See telephoned Friedman and told him
of the membership’s decision and that the membership had
voted to present two options to the Company. In a letter dated
January 17 to See, Friedman described the two options pre-
sented to him, and explained why the Respondent was rejecting
one of the options:
Thank you for verbally presenting the two negotiations
options to me on Friday, January 13. As I understand the
offers, one was to open early contract negotiations without
a deadline other than June 1, 1995 (instead of our February
28 proposed date) and the other was to just deal with our
current non-competitive position by discussing economic
relief options now and then negotiate the contract when
the time comes.
I’m sure a lot to time and effort was spent on coming
up with these two proposals but we remain concerned
about bringing the negotiations to a conclusion in time to
help 1995. We feel that the second option, trying to deal
just with the economic relief, will be almost impossible
because we will have to deal with the Collective Bargain-
ing Agreement anyway.
This leaves the first option, the early opening as the
more sensible approach provided we both have a mind to
really deal with the issues and bring in a Contract and re-
lief long before the present one expires. To have any real
impact, February 28 still seems to be a sensible target.
Therefore, we would choose the early opening option
with the understanding that if there is no significant pro-
gress towards our economic problems on a prompt and
timely basis, we retain the options provided in the Con-
necticut Operations Letter of Agreement dated November
5, 1991. We must keep this option open to protect our
business which translates into jobs for all of us.
In contrast to what he stated in his letter, in his testimony
Friedman claimed that he informed See that, in the event that
negotiations did not reach a resolution by February 28, the
Company would, pursuant to the Connecticut Operations Let-
ter, again provide the information to the Union already given
and then subcontract. His letter, however, was far more am-
biguous. While acknowledging that the Union had rejected the
February 28 deadline, he now described it as a “sensible tar-
get,” and stated that if there is no progress” on a prompt and
timely basis” then the Company retained its right under the
Connecticut Operations Agreement. The letter does not spell
out what he meant by retaining such rights.
Moreover, in a letter to Friedman dated January 19, See
makes no mention of Friedman’s claimed Statement that the
Company would subcontract if no progress was made by Feb-
ruary 28. The absence of any reference in See’s letter to the
purported Statement would be inexplicable if Friedman had in
fact said it, since on its face See’s letter meant “to set the record
straight”:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1476
I am in receipt of your fax and letter dated January 17,
1995. To set the record straight, it was the Company who
proposed to the Union to consider opening the contract
and negotiating early. With that proposal you named a
deadline of February 28, 1995. The membership voted,
unanimously, to open the contract for early negotiations,
without any deadline other than June 1, 1995. The mem-
bership also voted, that if the Company’s position was that
the February 28, 1995 deadline stayed, we would not open
for early negotiations. The membership also gave the op-
tion to the Union committee, to enter into bargaining of
the Company’s proposal for cost reduction, which must be
brought to the membership for ratification. These negotia-
tions will be based on the option provided in the Connecti-
cut Operations Letter of Agreement dated November 15,
1991.
As per our telephone conversation, I am glad that the
Company is in agreement with the membership to open
negotiations early with a deadline of June 1, 1995.

It appears that in his letter, See makes clear that the options
presented to the Respondent were either early contract negotia-
tions with a deadline of June 1, or immediate negotiations for
economic relief pursuant to the Connecticut Operations Agree-
ment. He thanked Friedman for choosing the first. In his tes-
timony, Friedman claimed that when he received See’s letter he
was “so happy . . . to get to the table that this [i.e., See’s letter]
didn’t contradict anything . . . that we had discussed,” and the
Union understood that the Company was reserving rights under
the Connecticut Operations Agreement. When confronted with
the fact that in his own words he had switched from describing
February 28 as a “deadline” to “a sensible target,” he claimed
that in his mind “sensible target” was “as close to a deadline as
you can have” and while “deadline’ is a stronger word . . . it
means virtually the same thing “as” sensible target.”8
The parties began negotiations on February 1 for a new col-
lective-bargaining agreement, the day after the Union had al-
ready scheduled elections for the new negotiating committee.
Previously, on January 31, 1995, Lawrence Sills, president of
Standard Motors Products, addressed all the employees wherein
he expressed his disappointment with the Union for its lack of
cooperation on a cost reduction plan. At the February 1 meet-
ing, the Union questioned why this had occurred, and Friedman
admitted that Sills had, in fact, expressed “disappointment” in
the Union’s lack of cooperation about the cost reduction plan.
At this meeting the Respondent presented a list of “Cost Sav-
ings Options” and Friedman explained that the Company had
lost $5.2 million, and asked the Union to pay for one-third of it,
or $1.7 million each year of the labor agreement. Friedman said
the Company would look for other avenues to pick up the re-
maining losses. Asked if the list was a “demand,” Friedman
said no, they were only options to find $1.7 million and the list
was not meant to be “all-inclusive.” The parties reviewed the
list, and Friedman explained that $1.7 million was the target,
and the Company hoped the Union would have its own ideas
and suggestions. See said he thought that $1.7 million was

8 It appears that in effect Friedman claims that the Respondent had
gotten what the Union specifically rejected, i.e., opening the contact
negotiation early, and if no contract was reached by February 28, the
Company could subcontract unit work. Moreover, See had expressed
that the Respondent could not lawfully threaten to subcontract if the
Union did not agree to its contract proposals.
“unrealistic,” and said the Union’s accountant had trouble with
the way the Respondent did its books. See also expressed puz-
zlement by the fact that the Respondent was now making re-
quests in areas other than wheel cylinders. Friedman explained
that the wheel cylinder department was no longer the only
problem, but now the whole hydraulics operation was in trou-
ble. See asked why the Company was including distribution,
and Friedman explained that if the Company was not packing
and shipping product, there would be no need for distribution
and the number ($1.7 million) was too big to simply put on the
wheel cylinder people. Paulus presented a chart at that meeting
comparing the benefit and fringe package at the Respondent’s
Berlin plant with those of competitors.
Many of the options listed had costs attached to them. The
Respondent’s method of estimating such costs was to take a
unit size of 276, among whom 203 had family medical benefits,
and 73 had single coverage. It also utilized an average salary of
$13.12 per hour. Utilizing these figures it then projected sav-
ings for many of the items listed. However, at trial the Re-
spondent described some of those figures as “hard,” meaning
they led to immediately and calculable savings, while other
were “soft,” and the projected savings were a matter of conjec-
ture. Other items were noneconomic and had no costs attached
to them at all. One such item directly infringed on the Union’s
ability to represent employees, item no. 26, which said union
stewards could not be part of any “teams,” citing “efficiency
problems in cells.”
The parties met again on February 2. See reiterated that he
could not believe the Company was asking for so much money
in concessions from the unit employees and said he thought it
was unrealistic. Friedman informed the Union that the Re-
spondent was having a time study done by the H.P. Maynard
Company, which was a proponent of the MOST system, and
that productivity was going to be a very important part of the
Company’s proposal. Friedman said Maynard was the “Cadil-
lac” of predetermined time systems, and was highly regarded in
the field. He gave the Union a business card for Roger Weiss,9
President of Maynard, and said Weiss had done work for the
UAW. The Union canceled the next scheduled meeting to
work on its own proposals.
The parties next met on February 16 and 17. At the February
17 meeting Friedman began by discussing the continued losses
that the Company was experiencing and said the month was
coming to a close and the Company had still not received any
proposals from the Union. Friedman stated that if no relief was
forthcoming by the end of February, the Company would sub-
contract. See said he would have proposals at the next meeting,
but that Friedman should not have any expectations that they
would be anywhere near $1.7 million. Friedman stated that he
thought “this thing” was “dragging on,” and wasn’t “resolving
anything quickly “and See got upset and said, “Then why don’t
you just go ahead and subcontract everything out?” See said
that his accountant was still uncomfortable with the numbers,
and referred to the Company trying to put the whole $5.2 mil-
lion loss on the Union and accused the Company of trying to
take advantage of the situation. Friedman said that the Respon-
dent was only asking for $1.7 million, and argued that the
Company should not be blamed for any confusion regarding the
Union’s accountant and that losses were mounting and the
9 The transcript mistakenly identifies Weiss as “Lise” at p. 635.
STANDARD MOTOR PRODUCTS 1477
Company still needed relief. The parties then reviewed the
proposals.
Meanwhile, unknown to the Union, the Company had drasti-
cally increased the subcontracting of wheel cylinders, and sig-
nificantly increased subcontracting of master cylinders, in Feb-
ruary. February was in fact the highest month of subcontract-
ing in those areas. Thus, as the parties negotiated for a new
collective-bargaining agreement, the Respondent had already
implemented and made good on its threat to subcontract unit
work. The Union, however, was not notified of the implemen-
tation until March, when it received a letter from Friedman to
that effect. The Union, unaware of these facts, had DeCastro
fly in from Detroit to once again attempt to find an alternative
way to help the Company without having the unit employees
take such drastic cuts in their wages and benefits.
The March 2 meeting began with DeCastro, in accordance
with his standard practice, meeting with the Union’s bargaining
committee to explain to them that the Company had a problem.
He related his great experience in helping companies with
competitiveness problems and explained to them that he would
like to pursue some ideas with certain members of management
privately, and spent 3 to 4 hours in the process of convincing
the committee to be flexible, and to agree to such a private
meeting between DeCastro and someone in management to
which the committee finally agreed. The Union than proposed
such a meeting between DeCastro and Paulus, or possibly Car-
boni with the Respondent’s comptroller, Mucherino, present
and Russ See, but not the Human Relations Personnel Sandy
Kay or Friedman. The Union expressed that the meeting might
“break the log jam and resolve” their problems. Paulus at first
expressed his willingness to go to such a meeting, but the Re-
spondent’s negotiating committee refused. When the parties
did finally meet that day for negotiations. See asked whether
the Respondent’s list was a “proposal´or did they have a pro-
posal? Friedman responded that he felt that See was trying to
set a “legal trap” for him, and the Respondent caucused. When
they returned, Friedman said, “These are our proposals.”
The parties met again the next day, March 3. The Respon-
dent gave the Union a document entitled “Clarification of Pro-
posals Discussed March 2, 1995.” That document made no
mention that the listed items were to be considered only as
“options.” The parties also discussed, and the Union rejected, a
proposal concerning the equalization of overtime. See also
hand delivered to the Respondent an information request dated
March 3. The parties now had a heated argument, and See
expressed that there were things in the Union’s proposals that
the Respondent never would have gotten in normal negotia-
tions, things that did not have a price tag on them. Friedman’s
response was “that’s what negotiations are all about, for us to
ask you things.” See stated, “All right. Then we have a pro-
posal for you, to change some language,” and then handed the
first Union proposal to Friedman. See told the Company to
disregard the economic proposals which he would address
lather stating, “These are not our economic proposals,” and to
consider the noneconomic ones. The Company caucused and
Friedman, who was “very upset,” started yelling telling the
Union that its proposals were not responsive to the $1.7 million
request and told See that the Respondent was “very disap-
pointed about it.” The parties again referred to subcontracting,
and See said he did not like the “threats” that the Respondent
had made in previous meetings to subcontract if it did not get
relief by the end of the month (i.e., February). See again said
that $1.7 million was “unrealistic” and DeCastro also added at
that meeting that he felt that it was unrealistic to ask the bar-
gaining unit for that much money.
On March 6 Friedman sent See a letter informing him that
the Respondent was subcontracting unit work, and would lay
off 51 employees, and listed the number of employees to be
laid off in each department. The letter did not, however, spec-
ify what, or how much, unit work was to be purchased from
outside, but did state that “These orders, once placed, are not
cancelable.” The layoffs were to begin March 31 and to be
completed by about May 12.10 Moreover, Friedman in the
letter states:

In your letter of January 19, 1995, the Union agreed to open
negotiations but rejected the February 28, 1995 deadline.
You did acknowledge in that letter that “these negotiations
will be based on the options provided in the Connecticut Op-
erations Letter of Agreement Dated November 5, 1991.”

However, See had in fact given the Respondent two options.
First was early contract negotiations with no deadline until June
1. The second option was to negotiate for cost reductions,
which “negotiations will be based on the option provided in the
Connecticut Operations Letter Agreement dated November 15,
1991.” The negotiations for a new collective-bargaining
agreement were not based on the Connecticut Operations
Agreement. Additionally Friedman claimed in the March 6
letter that a joint committee had been formed pursuant to the
Connecticut Operations Agreement. However, not only had the
joint committee not been formed as contemplated by that
Agreement, Friedman had himself expressed at the January 11
meeting that “[w]e did not actually follow the Letter of Agree-
ment,” and instead went to “paragraph 3,” thus bypassing para-
graph 2, which called for the formation of a joint committee.
See responded by letter on March 7 taking exception to the
February 28 deadline and stating: “We had resolved this issue
in writing that there was no deadline except the current contract
deadline of June 1, 1995.” He rejected Friedman’s claim that
the Connecticut Operations Agreement had been followed, and
demanded that the Respondent “cease and desist” from subcon-
tracting unit work “and abide by the November 5, 1991 Letter
of Agreement.” He also requested that the Company demon-
strate at the next meeting where the Company planned to make
savings of $3.3 million of its own as promised, beyond the $1.7
million demanded of the Union.
At the next meeting, March 9, the Respondent came in with
further “clarifications” of its proposal, as “options.” Friedman
made clear at the start of the meeting that they were not pro-
posals. Friedman reviewed the past since June 1993, and stated
that they had six bargaining sessions and the Respondent felt
they were no closer to resolving the Company’s economic
problems, and that See had in fact said he would address eco-
nomic issues lather. He explained that they felt they had “no
choice on March 6th, we just couldn’t wait.” Friedman said the
orders had to be placed by February 28 to be received by June
1, that there was a 12-week turnaround period, and the orders
could not be canceled. See testified that the Union felt they

10 The letter appears disingenuous in that, it attributes the Respon-
dent’s decision to subcontract to the events which transpired during
negotiations, particularly when the Union presented its own proposal on
March 3. However, as noted above, the Respondent had already began
the process of greatly increasing the subcontracting of wheel cylinders
and master cylinders in February.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1478
were holding a gun to our head over this issue. The Union
requested additional information, and Friedman responded that
if they kept asking for more information, “We’re never going to
get anything resolved.” See asked how the Company had come
up with the 51 layoffs expressed in the March 5 letter, what was
the cost factor, and would that cost be deducted from the $1.7
million the Company was seeking in concessions. Friedman
responded no, the layoffs would be temporary, and if the Union
gave them $1.7 million, the employees would come back. The
Company did not, however, ever give the Union the cost factor
concerning the layoffs.
The Respondent did give the Union a list of purported man-
agement savings. Included In that list was the layoff of 12
office positions in 1994, which had a cost factor of $451,000,
and an additional reduction of five office positions worth
$210,000. Again See asked, in light of the Company’s use of
these layoffs to offset their cost savings, could the Union use
the layoff of the 51 unit employees to offset the $1.7 million
expected of the Union. Again, Friedman said no.
At this meeting the Union once again tried to set up an off-
site meeting between DeCastro, Carboni, and Mucherino, but
the Company refused if Friedman was not present. At the end
of the meeting, See suggested that DeCastro meet with
Mucherino. When DeCastro and Mucherino did meet, DeCas-
tro again tried to convince the Company to set up a meeting
between Russ See and Mike Paulus, which DeCastro and
Mucherino could attend. DeCastro expressed to Mucherino
that he had “some amount of doubt about the financial situa-
tion,” and indicated that it was so big he thought the Company
may be “trying to basically finance a move through asking the
Union for concessions.” DeCastro indicated that he felt that
Paulus and See were the principals involved, and that Paulus
had been put there to turn the Berlin plant around, and that’s
why they wanted to talk to Paulus.
The parties met again on March 10. Once again See at-
tempted several times to set up a meeting with DeCastro,
Mucherino, Paulus and See. DeCastro got upset because he
could not understand why they wouldn’t meet and listen to him,
and since he felt there was no commitment on the part of the
Company, he left the meeting. The parties caucused and the
Union waited around, with the expectation that the Company
would be getting back to the Union, but not having heard from
them, the Union decided to adjourn for lunch. Lather Friedman
and Kay came into the dining hall very upset and Friedman told
See, “We’re in our caucus room waiting for you, and you’re
having lunch.” See answered, “Well, that wasn’t my under-
standing. You were supposed to get back to us,” to which Kay
responded they were “breaking off negotiations.” See said,
“Whoa, wait a minute. I have a proposal to give right after
lunch.” Kay said, “Mail it,” to which See responded, “I ain’t
mailing it, I don’t mail things. I’m going back to the table and
we’re going to bargain it.” Kay said, “No, for today. Put your
proposal in the mail,” and the Respondent’s representatives
walked out.
The next meeting was scheduled for March 15. When the
parties met Edgerly informed the Company that See was in the
hospital. The Respondents representatives said they were ex-
pecting a proposal that day, and refused to meet without See.
Cardinal said that he was authorized to bargain for the Union,
and was prepared to meet but the Respondent refused.
Cardinal wrote a letter that day protesting the Respondent’s
refusal to meet without See’s presence, and accused the Re-
spondent of engaging in “corporate extortion.” Friedman re-
sponded by letter dated March 20, in which he blamed DeCas-
tro for delaying negotiations stating, “What followed over the
next five months (from June to November) [1994] was an end-
less stream of questions, many of which concerned items of
insignificant value and/or utter irrelevance.” Friedman went
into great detail in attacking the Union’s attempt to set up a
private meeting. Moreover, he claimed that although DeCastro
attended the March meetings, he asked no questions about the
Company’s “accounting methods or numbers.” However, at
the hearing, Friedman admitted that DeCastro had in fact chal-
lenged those numbers at the bargaining table.
Friedman would repeat his accusations about DeCastro in
another letter dated May 10, in which he stated:

Despite our cooperation, it took from June of last year to No-
vember (during which time we had to respond to an endless
barrage of requests for information for your auditor to agree
that we had, in fact, lost approximately $5.2MM in this facil-
ity over the past twelve months

However, at the hearing, Friedman admitted that DeCastro had
only made three information requests, and it was his questions
which alerted the Respondent to focus on the gravity of its
situation.
Moreover, the March 10 and 15 meetings appeared filled
with rancor and recriminations. As See recounted at the hear-
ing, the announced subcontracting and layoffs had an “enor-
mous impact.” It was perceived as a “threat,” an act of “intimi-
dation to us that we’ve got to play by their rules, or they’re
going to take their marbles and go home. It’s their way or the
highway.” The membership was “scared” into thinking that the
Company wanted them to strike, “to take us on, and probably
close the plant.” It “upset the total membership, especially
when the layoffs were posted.” Moreover “the parties were at
each other’s throats from then on.”
The parties next met on March 21. Prior to that meeting,
Friedman responded to the Union’s March 3 information re-
quest by letter dated March 17. The letter explained that by the
end of April, in-house production of wheel cylinders would be
down to 3600 per day, while the products purchased on the
outside would be 5500 per day. The “short line,” also called
the Economy Line, were those wheel cylinders never manufac-
tured in Berlin, would remain at 2000 per day.11 The Company
also provided two lists, one identifying part numbers subcon-
tracted since January 1994, and one identifying those parts
changed in 1995 to being purchased on the outside because
“our costs were too high.” The lather list was titled “Purchased
Wheel Cylinders from March 3, 1995.” However, as noted
above, the Respondent had in fact greatly increased subcon-
tracting of wheel cylinders, as well as master cylinders, in Feb-
ruary, and the documents do not explain in any way how to
distinguish which parts were subcontracted in February 1995.
Friedman’s letter also informed the Union that H.P. Maynard
was continuing a study at that time.
At the March 21 meeting See began by questioning why the
Respondent refused to meet on March 15, to which the Re-
spondent answered that they had not gotten any proposals in the
mail, and that was the reason for not meeting. See asked if the
Company had asked the Union’s bargaining committee if they

11 Reading par. 1 of that letter makes clear that the “Short line” and
“Economy Line” are the same thing.
STANDARD MOTOR PRODUCTS 1479
had the proposals, and reminded the Company that it was a
three-party agreement (i.e., the local and the International are
joint representatives) and the Respondent had an obligation to
sit down with the committee and the International. The Re-
spondent then presented information to the Union, and Fried-
man offered to have Carboni meet with See about further dis-
cussion of management cost savings figures and some bargain-
ing. See agreed to meet with Carboni the following week.
The parties next met on March 29, with See and Carboni first
meeting privately in an off-the-record meeting, in which See
gave a proposal to Carboni. Lather, when negotiations were to
begin, the Respondent objected to the presence of a state me-
diator requested by the Union. Kay got angry and said he
didn’t know the mediator was coming, and refused to meet with
him. See told him the meeting was over if they did not let the
mediator in. The mediator explained the Connecticut statute to
Kay who then consulted with his attorneys, and the Respondent
representatives finally agreed to meet, but expressed their dis-
pleasure with not being notified earlier about the mediator.
The Union then gave its first economic proposal, in effect
accepting the Company’s proposal to eliminate wash-up (wor-
thy $144,844 according to its own proposal) if the Company
guaranteed full employment for the unit (i.e., 273 employees).
The Respondent got upset because the proposal did not reach
the amount requested. The rest of the meeting continued with a
discussion of the Respondent’s subcontracting of returned
goods to its Manila, Arkansas plant. When See tried to learn
the costs of that move, he was told to ask DeCastro. He said,
“I’m not asking DeCastro, I’m asking you if this is going to be
part of the $1.7 million.” However, the Respondent did not
want to speak about that cost. See asked, “What good is it to
negotiate $1.7 million if you’re going to lay off people?”
Friedman responded that their “long-term plan is not to contract
these jobs out.” At that meeting, the Respondent provided See
with responses to what he had discussed with Carboni, but See
became upset because that meeting had been confidential, and
he had expected a call from Carboni.
The parties next met on April 5 without See, whose father
had died, and the parties reviewed the Union’s noneconomic
proposals. The parties met again on April 12 also without See
wherein the Union conveyed two new proposals that day re-
garding the loss of one holiday if an employee failed to work
the preceding or following workday; and a proposal about the
disciplinary system. The parties also reviewed a union effects
proposal which had been faxed to Friedman the prior day.
Friedman agreed to put the Respondents responses in writing.
The parties did not meet again in negotiations until May 4.
Prior to that date Friedman sent two letters dated May 1 to See.
One of the letters presented revised company proposals, includ-
ing a notice of a new productivity proposal and a new bonus
incentive plan to be presented by Roger Weiss from the H.P.
Maynard Company at the May 22 meeting. Friedman said in
that letter that they would try to brief the Union’s time study
expert Dan Trull on May 3 when he would be at the plant since
he knew that Trull could not attend the May 22 meeting. While
the letter also states that the “Company’s proposal to reduce
labor costs by $1.7 million dollars annually remains on the
table,” Friedman goes on to say that the Company had “revised
our proposal to reflect what must be included if we are to reach
agreement on or before June 1, 1995.” However, the various
economic items in the new proposal added up to about $2.1
million in concessions, and the letter does not indicate how
different the wage proposal to be given on May 22 would be
from what had previously been proposed.
In Friedman’s other letter dated May 1, he responded to the
Union’s economic proposal which See had said to ignore by
effectively rejecting all of them. He also rejected a number of
noneconomic proposals, stated which proposals had been tenta-
tively agreed to, and otherwise responded to a number of spe-
cific proposals. Moreover, he claimed that he was sending the
letter “in the interest of moving along negotiations and avoiding
impasse.” Friedman never explained why he thought sending
advance notice of the wholesale rejection of the Union’s pro-
posal would help avoid impasse, particularly when See had
already, as noted above, informed the Respondent that he did
not negotiate by mail.
On May 3 Trull visited the facility to investigate a dispute
over some production standards. There was a grievance per-
taining to CNC turntables. Steve Edgerly had contacted the
time study engineering department to have an evaluation done
and Trull had been assigned to it. Edgerly, who picked Trull up
that morning, mentioned to him that the Company wanted to
speak to him about the MOST system. Friedman had called
Edgerly prior to that day and informed Edgerly about the Com-
pany’s intention to discuss the MOST system that day. Trull,
however, was not expecting to discuss the MOST system prior
to that meeting.
After discussing the production dispute with the Respon-
dent’s industrial engineer, Ken Caya, Trull was brought to a
meeting with Friedman, Paulus, Geoffrion, and Caya. Edgerly
and Local President Lockhart were also present. Friedman
presented Trull with the copy of a chapter from a MOST text-
book and said the Company wanted to change incentive sys-
tems, and wanted to restudy all production standards in the
plant utilizing the MOST system. There then was a general
discussion about utilizing MOST and converting to a new in-
centive system and Trull indicated that he did not feel there was
a serious problem with the Respondent’s existing production
standards, and questioned whether it would be worth the ex-
pense of restudying all the jobs using MOST. He agreed that a
new incentive system could be designed without changing the
existing production standards. Friedman, however, stated the
Company’s desire to redo all standards, and said that they did
not feel comfortable with the existing standards. Trull ex-
pressed that any incentive system implemented should be a
“one-for-one” system in which every one percent increase in
productivity resulted in an increase of one percent in employ-
ees’ pay. Friedman said the Company wanted to change the
Personal Fatigue and Delay Time Allowance (PF&D), but Trull
said he was not prepared to meet for any length of time because
he had a plane to catch, and he would not be able to get into
any in-depth discussion on the MOST system. They did not get
into details of any particular system at this meeting, which was
short.
Negotiations continued on May 4. See expressed his dis-
pleasure and said that the Union did not negotiate by mail, re-
ferring to the proposals sent to him by Friedman on May 1. He
said that the Union had not had a chance to consider all of its
proposals at the table. Friedman said the Company was trying
to speed things up and claimed that the Union had refused to
negotiate about various items. After discussing the transfer of
returned goods on reduced costs, the parties then reviewed the
Union’s proposals.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1480
The parties met on May 5. They first discussed costs again,
and then continued reviewing the Union’s proposals. At some
point in the afternoon, Friedman said that they did not want to
discuss the Union’s proposals anymore, and wanted to begin
discussing the Respondent’s proposals again. The Respondent
refused to continue discussing the Union’s proposals and See
got upset and said they should bring in the mediator. The Re-
spondent first suggested a caucus, and then suggested ending
the meeting at that point, since it was due to end soon anyway
because Paulus had to catch a plane. As the meeting broke up
See informed the Company that the Union was not prepared to
meet with the Maynard representative on May 22 because Trull
could not attend. Friedman got “totally upset,” and said the
Company would break off negotiations until the Union met
with Maynard and stormed out of the room.
By letter of May 10 Friedman recounted the events of May
5, claiming it was the Union who was refusing to meet, as well
as alleging that DeCastro had subjected the Company to “an
endless barrage of requests for information” between June and
November 1994 as described above. Moreover, he stated that
the Company regarded the “negotiations as temporarily ‘on
hold’ until you ‘get ready’ for them to continue.” However, at
the hearing, Friedman admitted that it was the Respondent who
was refusing to meet unless the Union agreed to meet with
Maynard’s president, Weiss, on May 22. Additionally, Fried-
man claimed that the Union had agreed to Weiss’ May 22 pres-
entation, and that “we had already briefed your incentive ex-
pert, Dan Trull, earlier in the week.” However, it appears that
all Trull was given was a chapter from a textbook, and in-
formed that the Company wanted to have a new incentive sys-
tem utilizing MOST, without giving any details.
Further, Friedman also claims in the May 10 letter, “This
plan, as you are aware, is critical to our proposals and joint
survival.” Despite the assertion that See was “aware” of how
“critical” this plan was, as far as appears from the record, this
was the first time Friedman ever described the “plan” as “criti-
cal” to its survival. The Respondent’s insistence on having
Weiss’ presentation occur on May 22 is made completely inex-
plicable by the fact that both Weiss and Trull were available on
other dates, and the Company knew that. Moreover, Friedman
acknowledged that the Union would need its expert in order to
bargain over the plan and there seems to be no justification for
the Respondent’s insistence on discussing MOST with the Un-
ion without Trull’s presence, particularly where Friedman de-
scribed the new incentive system to be “one of the most signifi-
cant linchpins in the whole process.”
See wrote back immediately on May 11, saying that the Un-
ion was going to show up on May 22, but that the Union was
not prepared to meet with Weiss regarding the incentive system
because Trull was unavailable. Friedman responded by letter
dated May 17 in which he again recounted his version as to
what had transpired on May 5 and said Weiss would make his
presentation on May 22, regardless and suggested that the Re-
spondent could bring Weiss back on another date after May 22.
The parties did meet on May 22 during which they discussed
the Union’s grievance proposals, reached agreement on some
other items, and the Respondent agreed to type those agree-
ments. They also exchanged some counter proposals.
Weiss spoke to the committee at 2 p.m. making a presenta-
tion using charts, and explained the new incentive system, and
said that union employees could earn up to 120 peercent under
the new system. He explained that all jobs would be retimed.
He got into a lot of technical detail about the system which See
admittedly did not understand. Weiss also presented to the
Union a document which actually consisted of two separate
documents. The first was entitled “SUPPLEMENTAL
AGREEMENT GOVERNING CONVERSION FROM THE OLD
INCENTIVE SYSTEM TO THE NEW EIS BRAKE PARTS
STANDARD HOUR PLAN” (the Supplemental Agreement). It
set forth the new rates for employees on incentive in each labor
grade, which reflected a 10-percent decrease in their base salary
once the jobs had been retimed, and when the new “EIS
BRAKE PARTS STANDARD PLAN” (which was the second
document, and herein called the Standard Hour Plan, and cited
as ‘SHP’). was implemented, and new standards were “installed
for group/’focus factory’.”
The new Standard Hour Plan called for, inter alia, that the
new incentive standards “will be established to provide an earn-
ings opportunity of approximately (20%) above the incentive
base rate.” It also gave discretion to the Company to establish
allowances: “Reasonable allowances for personal, cost and
unavoidable delay will be applied to the standards.” Normally,
PF&D allowances are negotiated with the Union and in fact, the
parties had negotiated those allowances in 1988. Moreover, in
its previous proposals, the Respondent had prepared changing
the existing PF&D from 15 to 12 percent. The Standard Hour
Plan stated that “incentive earnings will be calculated for each
employee for the total hours worked on incentive during each
work week.” Attached to the Standard Hour Plan was an “Ex-
ample” of how the bonus would be calculated, but it left open a
number of questions. It did not, for example, identify which
group of employees, direct and/or indirect, would be included.
The Standard Hour Plan also did not explain how the bonuses
would be calculated. It appeared from the Example that actual
down time was being used for that calculation. The existing
System also had used actual down time. Moreover, the Stan-
dard Hour Plan itself stated:

Delays may occur which are beyond the control of the em-
ployees because of equipment failure, power failure, lack of
material, quality problems, lack of schedule, or other causes.
Such delays will be properly accounted for by appropriate
time reporting.

Thus, it appeared from what was presented to the Union that
actual down time was being used in the calculation. Neither the
Standard Hour Plan nor the Example explained what PF&D
allowances were being utilized in the calculation. The Respon-
dent explained that the new system would be implemented
gradually throughout the plant.
In the proposal presented to the Union that day the Respon-
dent replaced its original proposal of an across-the-board 50-
cents per hour wage cut, which it had estimated to be worth
$308,000, with a 10-percent cut for employees on incentive, the
value of which it calculated at approximately $506,812. In
total, including the elimination of red circles worth $189,00 and
“hidden red circles” worth $45,000 the Respondent proposed
$741,404 in concession wage cuts that day. For included em-
ployees, whose average wage was $13.12, it requested an aver-
age cut of 81 cents more per hour than the previous proposal.
The new proposal also replaced the Respondent’s previous
proposal to drop the PF&D allowance from 15 to 12 percent,
which the Company had estimated to be worth $110,502. The
new proposal did not include an estimate as to what savings the
Company would achieve with regard to PF&D allowances.
STANDARD MOTOR PRODUCTS 1481
After the meeting the Union faxed a copy of the Supplemen-
tal Agreement and the Standard Hour Plan to Trull, who re-
ceived it in early June. Trull had a number of concerns, includ-
ing, inter alia, how senior employees would be affected; how
the standards would actually be developed, how allowances
would be factored into the standards; what these allowances
would be; the fact that the proposal would lock the Union into
one specific type of individual technique; how down time
would be compensated; how the bonus calculations would be
done, and which employees would be involved. Trull sent a
letter on June 6 to See listing some of his concerns and See
used that letter to draft his own letter to Friedman that same day
requesting answers to Trull’s questions.
Meanwhile, negotiations continued with the parties meeting
on May 28. The Respondent and the Union went through vari-
ous proposals, and the parties modified two previous propos-
als.12 They then discussed the incentive MOST system pro-
posal, and See complained that the Union did not have any
input into drafting the language. Friedman explained that the
Company had drafted the language with Maynard and that most
of it was “boilerplate.” Friedman stated that standards would
be set so there would be a bonus potential of 20 percent. See
said he would have preferred to be present at the drafting of it,
and there were still some questions that he had and he wanted
his expert to look at it. The parties also reached tentative
agreement on certain language issues. The parties next met on
May 30 and cleared up some of the language items. The Re-
spondent submitted some new and revised proposals which the
parties reviewed. See stated that it was unrealistic to expect the
Union to come up with $1.7 million, and asked for the Respon-
dent to lower its request. He also wanted to know, before the
Union would make “strong proposals,” about what was being
done on the management side to hold down losses. The Com-
pany also formalized its new productivity proposals in writing
and included the elimination of its red-circles in its productivity
proposals.
The parties met again on May 31 and working through the
mediator each party went through the other’s proposals. The
Union rejected most of the Respondent’s proposals, while stat-
ing that it would consider some and the Respondent went
through and rejected each of the Union’s economic proposals.
The Respondent made some new proposals on that day and the
parties also signed off on a number of proposals. About 3:15
p.m., the Respondent gave the Union a letter from Carboni to
its employees. See suggested very strongly that the Company
should not do this since, he felt it was direct dealing but in fact,
the letter had already been given to the membership by then.
The letter related the critical nature of the problems the Re-
spondent faced regarding competition and financial losses and
the need to lower costs, and set forth its proposals to the Union.
The parties met on June 1, and for the first time significant
progress was made. The Union made two different offers. In
its first proposal, which was given verbally, the Union offered
to eliminate red-circles in 3 years, at the end of the contract, so
the employees could be retrained for other jobs. As noted
above, the Respondent estimated that the elimination of red-
circles was worth $189,290, and the elimination of “hidden red

12 The Union proposed modifying the holidays to include Monday
before July 4 in 1995; the Friday after July 4 in 1996; and Easter Sun-
day in 1997. This was the only other union proposal relative to eco-
nomics proposed by the Union since March 29.
circles” was worth $45,000. The Union offered to have the
employees share medical costs by paying $45 per month for
family coverage, and $15 per month for single coverage. Util-
izing the Respondent’s method of calculating, which was to
take the figure of 203 employees with family coverage, and 73
employees with single, and multiply by 12 months times the
amount of each contribution ($45 or $15) for the potential an-
nual savings, the first Union proposal was worth $122,760.13
The Union also proposed to accept the Respondent’s pro-
posal on holidays, in that those maintenance employees who
worked would be paid straight time during the Christmas shut-
down. The Company had valued this proposal at $6298. The
Union accepted the Respondent’s proposal to eliminate wash-
up time, which was valued at $144,844. The Union proposed a
5-percent decease in wages for employees on incentive, which
was worth $253,406. (The Company had projected a 10-
percent cut to be worth $506,812.) However, the Union re-
jected the MOST time system. The Union also proposed that
the existing no-fault language be eliminated, and a new disci-
plinary policy be negotiated. It also proposed that the Union be
allowed to review the Company’s books each year, and if the
Company showed a profit, there would be a possible wage in-
crease, which would be negotiated right then. No one would
get a wage increase, which meant the elimination of the annual
COLA which the Respondent had valued at $28,704. The Un-
ion also agreed to give “serious consideration” to “Attachment
B” which would establish a tow-tiered wage system, and which
was valued at $125,257.
The Respondent offered its counterproposal, and for the first
time lowered its demands of $1.7 million in concessions. In-
cluded in the Respondent’s counterproposals was a reduction in
the monthly contribution for medical insurance from $90 to $65
per month for family coverage, and from $30 to $15 per month
for single coverage. Utilizing the Company’s method of calcu-
lation, that meant it dropped its medical proposal by $25 x 12
months x 203 (family), and $15 x 12 x 73 (single) for a total of
$78,420. The Company reduced its flex force proposal from 30
to 25 employees. The Respondent had valued its original pro-
posal at $187,200. Reducing that to 25 employees would mean
the Company dropped its proposal to $156,000 or a drop of
$31,200. The Company dropped its incentive wage rate to 8
percent, or a drop of about $101,762. The Company also pro-
posed to extend its restriction of vacation to 4 weeks to office
personnel. The Company offered to keep red-circles for 6
months. It also dropped its proposed reduction of sick days
from 4–3 days. Its original proposal to eliminate 4 sick days
had been valued at $115,876, so the new proposal called for
$28,969 less in concessions. The Company also offered to
allow the Union to review its books each year, and offered to
negotiate a future wage increase with a cap.14 The Company
altered its proposal on bidding for jobs. The Company identi-
fied the proposals which it was offering and apparently dropped
all other proposals not previously agreed on. The Respondent
made a new proposal with regard to the incentive system, sub-
mitting three different systems, one being MOST. Each party
could remove one, and the remaining one would be the System
to be used. The Union insisted on its proposals on the incentive
system, but added that it wanted to negotiate the whole Sys-
13 That figure is roughly reflected in the Respondent’s notes.
14 Presumably this meant if the Company showed a profit, but the re-
cord does not make this clear.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1482
tem, no longer specifically rejecting the use of MOST. The
Union also offered to give up one sick day, which was valued at
$28,969.
The Union offered another counterproposal. There was no
change in the Union’s position on removing red-circles and the
Union still accepted the Respondent’s proposal on working
during Christmas shutdown at straight time. The Union did
reduce its proposal on medical insurance from $45 to $40 per
month contribution for family coverage, and from $15 to $10
for single coverage. See explained that he did this because the
Union had made other concessions which were worth more.
The incentive proposal was now worth $16,380 less than its
previous proposal, and amounted to $106,380.
However, the Union accepted the Respondent’s attachment
B (new pay scale tier II for hires, bumpers, and job bidders
hired June 2, 1995, or later) which was worth $125,207, with an
exception regarding a clause 11(a), that had no cost value. The
Union also offered to eliminate the 5th week of vacation for
employees. Employees who would have been eligible for a 5th
week would receive a $300 bonus in the first year of the con-
tract, $250 in the second, and $200 in the third. The number of
employees affected by this proposal was in the high 90s, and
Kay estimated the average value of this proposal at $27,000.
The Union proposed a wage freeze, including bonuses, for
management as well as the unit employees. If violated, em-
ployees would get a 3-percent increase. Similarly, if the Re-
spondent made money in any of the 3 years, the employees
would get a 3-percent increase. As no mention was made of the
washup proposal after the Union’s second proposal was given,
it was not clear whether it was still included or not.
The Respondent now offered its final proposal which called
for approximately $1.35 to $1.4 million in concessions.
Among the new features of its final proposal, the Company
offered to keep employees red-circled for 1 year and dropped
its flex-force proposal down to 20 employees. The Company
also offered to negotiate an increase in any year that it showed
a profit, not to exceed the percentage of profitability.
Towards the end of the meeting, a union representative
called Detroit, but Trull was not there, and Edgerly spoke in-
stead to George Codeluppi. Codeluppi said the Union should
counter with a “one-for-one” incentive system. See informed
the Company that the Union was willing to try the MOST sys-
tem if it was “pure,” and if it was a:”one-on-one” system. He
was not, himself, however, able to explain what was meant by
those terms. When See asked if the MOST system was “one-
for-one,” Friedman said he did not know. The Union told the
Company that it would bring the Respondent’s last proposal to
the membership for a vote, but would not recommend that it be
accepted. By letter dated that day, See notified the Respondent
that the union membership had rejected the Respondent’s last
offer. See advised the Respondent that the employees would
return to work immediately and work under the existing agree-
ment, and the Union would continue to bargain in good faith to
reach an agreement. He suggested that “since tempers are high,
we request that we take a 2-week cooling off period and set a
date after that to continue bargaining.”
By letter dated the next day, June 2, a Friday, Friedman told
the Union:

We are disappointed that the Union rejected our final
offer. We remain firm in our position and assume that
since you do not wish to continue meeting that the Union
is also retaining its position. If this is not the case, we re-
quest that we resume negotiations on Monday, June 5,
1995 and are prepared to meet on consecutive days.
As you are well aware, the Company continues to lose
money and further delay in resolving the situation could
jeopardize our future.

In his letter Friedman also accuses See of possibly promoting
illegal behavior, accused him of “stalling,” and demanded ne-
gotiations resume immediately.15
As noted above, See sent a letter on June 6 to Friedman re-
questing information, as to the answers to Dan Trull’s ques-
tions. He also specifically stated in that letter that he was in
receipt of Friedman’s letter, expressed regret that the Respon-
dent’s position was “being firm,” and stated that the Union was
willing to meet but first needed the information requested. He
also said that the tone of Friedman’s accusatory letter showed
that Friedman did “need a cooling off period,” and suggested
that all arrangements for future meetings be made through the
mediator. He also advised that “this type of threatening and
intimidating letter only antagonizes the situation.”
Friedman, however, sent a letter on June 7 accusing See of
being unconcerned about the Company and its employees and
declared impasse.

Your failure to respond to me to meet this week and your re-
quest to pull three (3) members of the Negotiating Committee
out of the plant next week makes it clear that we indeed have
your final offer as you indicated on June 1.

On June 13 Friedman sent another letter in response to See’s
information request, and claimed that he had not received the
information request until June 8. Curiously, unlike the prior
letters sent on June 2 and 7, which he faxed, this letter was only
sent by mail, and received in the union office on June 20.
Moreover, Friedman made new accusations, and specifically
claimed the Union was being regressive because it already had
the information and had already agreed to its proposal. He
further went on to accuse See again of potentially illegal behav-
ior, and said he now had two unidentified “sources” for his
accusations. Finally, he once again appears to declare impasse.

Our position on the items in our final offer remains firm.
Since you elected not to meet thus far, we assume you remain
opposed to our final offer.

The letter did not respond to the Union’s offer to arrange meet-
ings through the mediator.
Friedman sent another letter the next day, declaring impasse,
and announcing the Company’s intention to implement its pro-
posals.

Enclosed is our final offer of June 1, 1995, which you
have already rejected. As we indicated to you in our June
2, 1995 letter which you confirmed in your June 6, 1995
letter, our position remains firm.
As you know we have been meeting since June of
1994 and have not come close to reaching an agreement.
Therefore, under the circumstances, we see no prospects to

15 Friedman’s demands to meet on the following Monday, and for
consecutive days thereafter, seems disingenuous on Friedman’s part
since he knew before the June 1 meeting that See would be leaving to
attend a union national convention soon thereafter. See had in fact
been planning to go for months in advance, and had requested that the
shop chairman, vice chairman, and shop steward be granted leave to go
with him.
STANDARD MOTOR PRODUCTS 1483
an agreement and wish to give you notice of our intention
to implement elements of our final proposal on June 26,
1995.

It is notable that not only did Friedman in his letter make no
mention of arranging another meeting, but instead declared that
the Respondent now sees no prospect for an agreement. The
Respondent did not renew its demands for urgent and immedi-
ate meetings and the only intervening event was See’s informa-
tion request, in which he indicated a desire to set up meetings.
Attached to his June 14 letter was a typed version of the
Company’s last proposal in which Friedman makes an impor-
tant alteration He described “as agreed on” both the MOST
system and the “Group Incentive System.” This is particularly
disingenuous in that See had specifically stated in his June 6
letter that “various items in the proposal are unacceptable in
this current form.” Thus, Friedman could assume that when he
sent his new version of the Company’s last proposal that See
would immediately object to it. Moreover, Friedman admitted
that on June 1 the group incentive plan had not been “final-
ized.”
See responded to the June 12 and June 14 letters denying
Friedman’s claims, and protesting the announced intention to
implement the last proposal on June 26. Additionally he re-
counted the Union’s efforts to set up a meeting, and how the
Company now refused to meet at a hotel, as it had in prior ne-
gotiating meetings, thus causing new problems and delay for
negotiations. Friedman responded by letter dated June 22, in
which he admitted refusing to meet anymore in hotels, citing
cost reasons. He also informed the Union that the mediator had
set up a meeting for June 26, the day of the Respondent’s an-
nounced implementation of its final proposal.
On Friday, June 23, Friedman sent See a notice that the Re-
spondent would no longer honor the dues-checkoff provision in
the expired agreement. Neither Friedman nor Kay were able to
offer any explanation as to what purpose they had for such an
act on the eve of resumed negotiations, beyond the simple
claim of a legal right to do it. Indeed, when the administrative
law judge asked Friedman directly what the purpose of this
action was, Friedman became confused and had to be instructed
by the judge to stop looking to his counsel for help to answer.
The evidence shows that the Respondent was clearly preparing
for implementation of its final proposal. To that extent person-
nel drafted notices to employees dated Saturday, June 24, in-
forming them that they would need to make medical co-
payments corresponding to the Respondent’s last proposal.
The parties met briefly on June 26 during which the Union
delivered a written proposal to the Respondent. In its proposal
the Union moved in several areas. It increased its proposed
reduction in pay for incentive workers from 5 to 6 percent,
which would be worth according to the Company’s own fig-
ures, an additional $50,681. It included as a condition: “If it is
the Company’s position that we can earn 20% on a new incen-
tive System that % is reachable by the employees.” The Union
also added a “drastic” change in its vacation proposal, reducing
the bonus for those employees losing their 5th week of vacation
down to $200 each year, down from $300–$250 in the first 2
years of the contract. The Union also offered to accept the
Company’s Cost Reduction Plan, which had been valued at
$50,000. Finally, the Union, for the first time, stated that it
would “accept a group incentive plan, but we must sit down
and work out a fair and equitable system for the employees.”
This was particularly significant in that the Union had not pre-
viously stated its willingness to accept a “group incentive
plan,” and since the Union has historically been opposed to the
concept. The Union also expressed its willingness to negotiate
a new rate setting system, “be it ‘MOST’ or any other.”
Friedman reviewed the proposal and said there was “some
improvement, but not far enough,” and it was not what they
expected from the Union. He said the Union needs to go fur-
ther than this whereupon the Company then caucused. When
they returned Sunday, Kay had replaced Friedman as chief
negotiator with no explanation given for the sudden removal of
Friedman. Kay said the proposals were “not meaningful. As a
matter of fact, they’re regressive and they are rejected.” He
ended the meeting, and said, “That’s all for today.” Kay said
their final offer was on the table, and See said that the Union
would “take that offer into consideration” and “re-evaluate our
position, and set up another meeting.”
Both Kay and Friedman testified that the Union’s offer that
day was regressive. Their explanations, however, are confus-
ing. Both Kay and Friedman claimed the Union’s proposal was
regressive because the Union requested that “all” subcontracted
work be brought back to the plant. Friedman admitted, how-
ever, that the Company’s position had been that if the Union
can come up with $1.7 million in savings, the Company would
bring the work back. Kay claimed that the word “all” was am-
biguous, and could apply to work which had always been sub-
contracted. They did, however, ask for an explanation from the
Union.
Kay also claimed that the proposal was regressive because it
conditioned the wage cut in incentive pay on the ability of em-
ployees to make a 20-percent increase, that the 20-percent goal
be “reachable” for each employee. Somehow, Kay found that
to be regressive, despite the fact that it was the Company’s own
proposal, the Standard Hourly Plan, that described how the new
incentive standard “will be established to provide an earnings
opportunity of approximately twenty-percent (20%) above the
incentive rate.” Similarly, the Respondent’s own productivity
proposal dated May 30 describes that it will establish “an
incentive system that will generate earnings that can average 20
percent of the new straight time hourly rate. Kay also claimed
he wasn’t sure if the Union’s proposal meant 20 percent for
individuals or for the group. The Respondent did not, however,
question the Union to explain what it meant.
Moreover, Friedman found “regressive” and Kay found
“ambiguous” the Union’s wage freeze proposal. Kay claimed it
was capable of being interpreted one of two ways, in that it
includes management “bonuses,” and he did not know if that
meant that only any increase in such bonuses be frozen, or that
any bonuses at all be frozen. He did not, however, ask any
questions or ask for an explanation about this. Kay also had
questions, which he did not ask, about the Union’s proposal for
a 3-percent increase if the Company was profitable. Kay ap-
peared to claim that the Union was also being regressive by
offering the $50,000 Cost Reduction Plan, a former company
proposal, because the Union had previously rejected it.
Moreover, on June 26 the Respondent implemented its con-
tract proposals as it had announced its intention to do so by
letter on June 14. On June 26, the day of continued negotia-
tions, the Respondent also issued to employees a memorandum,
from Carboni announcing that “we are implementing all of our
last proposals,” and that certain of those would have “immedi-
ate effect.” Medical contributions, overtime to be paid only
after 40 hours of work, uniform contributions, the reduction of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1484
sick days, and the elimination of holiday pay for employees on
worker’s compensation leave. The Respondent’s personnel
department had also prepared on Saturday, June 24, the new
contribution for employees’ medical insurance.
Included in the notice was a copy of the version of the Com-
pany’s final proposal already given to the Union on June 14,
which claimed the Union had agreed to MOST and the “group
incentive system.” Interestingly, on that same day, Friedman
sent a letter to the Union to which was attached a different ver-
sion of the Company’s final offer, and the difference is of par-
ticular significance. The letter itself contained various allega-
tions of regressive bargaining, including the claim that the Un-
ion had agreed to MOST and the group incentive system on
June 1. It is important to note, however, “that the version of the
Company’s final proposal attached to the letter does not de-
scribe either MOST or the group incentive system as pro-
posed.” What makes this significant is that Friedman obviously
had this document typed after he had been notified that the
Union had rejected this proposal, because it specifically stated
that at the top of the document. The inference is unmistakable
that sometime between the rejection of its proposal by the Un-
ion on June 1 and 14, the date on which the Respondent, by
letter, announced its intent to implement, which included the
different version of the Company’s final proposal, the Respon-
dent came up with the claim that the Union had agreed to the
group incentive system. There is no evidence in the record to
support that claim. Indeed, on June 1, See told the Respondent
that the Union could accept the MOST system if it was “one-
for-one,” but Friedman was unable to explain if the system was
one-for-one. It is undisputed that the system implemented was
not a one-for-one system. Therefore, it is arguably untrue what
Carboni had informed the employees that the Union had done.
Friedman’s letter is also of particular importance in that he
clearly expresses the fact that the Respondent had already de-
clared impasse on June 14, and that its actions since the June 1
meeting were explicable only from the perspective of that dec-
laration of impasse.

We wrote you on June 14, 1995 that we were going to im-
plement our last offer. We met today, and remain at impasse
and, in fact, we are now further apart than we were on June 1,
1995. Thus, we are going to implement the June 1, 1995 pro-
posal which is attached, effective immediately.

On June 27, Russ See wrote back to Friedman, contesting
statements made by Friedman in his June 26 letter, and de-
manding that the Respondent cease its implementation of its
last proposal. Only two negotiating sessions for a new collec-
tive-bargaining agreement took place after June 26. The Union
requested an additional meeting to negotiate over the Com-
pany’s new Group Bonus Plan, which incorporated the MOST
system, but the Respondent refused to negotiate.
On July 13 the Union presented a new proposal with some
changes which the Respondent rejected. When See asked if the
Company still was seeking $1.7 million in concessions, Kay
refused to answer, and told See to “add them up” himself. Kay
claimed that it was a “trick question” by See, and Kay felt that
he “was being maneuvered into a position where the Union
wanted me to say yes, we are still demanding $1.7 million.” He
based this fear on the fact that he did not have the Company’s
last offer in front of him and, “I probably hadn’t reviewed the
offer in a while.”16 Further, when See asked questions regard-
ing prior claims by the Respondent to have cut office positions
as part of its own cost reductions plans, Kay simply told him It
was none of his business. Moreover, the Respondent said it
would no longer pay for the union committee persons during
organizing.
Towards the end of August Caya approached Union Chair-
person Lockhart and suggested that he allow shop floor em-
ployees to participate in the installation of the MOST system.
Lockhart refused because the Union had not approved nor rec-
ognized it and the Union had consistently refused to participate
in the “technical teams” implementing the new system. The
Respondent went ahead and established standards, developed a
bonus calculation, and ran a 4-week pilot program which did
not affect employees’ actual pay at the time. In September
Lockhart informed See that he had been approached by Geof-
frion about the implementation of the new incentive system,
and told that Geoffrion would be holding meetings with em-
ployees about it. Lockhart told Geoffrion that it was a manda-
tory subject of bargaining, and should be negotiated. When See
learned of this he sent a letter to Friedman recounting what
Lockhart had told him, and requesting bargaining “over your
proposed incentive System.”
Friedman responded by sending See a copy of the Group
Bonus Plan which was to be given to employees in the packag-
ing area. Friedman claimed:

The purpose of the meetings is to give this first group
of affected employees an overview of what we have al-
ready presented to the negotiating committee in our final
offer.
Enclosed is a copy of the handout we will give the em-
ployees. This material and the calculation follow as the
same procedure we presented to you and the committee in
our final offer.

By letter dated October 2 See advised Friedman’s that his
claim that the new Group Bonus Plan had been previously pre-
sented to the negotiating committee was “totally incorrect,” and
demanded bargaining over the group bonus plan. Friedman
responded by letter on October 6 and specifically claimed that
the Plan had been previously presented:

The bonus calculation technique was included as part
of the proposals made to you and as part of our final offer.
The brochure you received with the September 26, 1995
letter just restates the technique as it applies to the Packag-
ing department. The brochures were distributed last week
as we indicated.
My files indicate that since June 1, 1995, when the
contract expired, you have not met with us or made a pro-
posal on this subject. We told you on June 26 that we

16 The General Counsel asserts that the fact that the Respondent’s
new chief negotiator had not even bothered to review the Company’s
last offer before meeting with the Union at the first meeting since the
Respondent had implemented that very offer could be interpreted, along
with its prior conduct, as indicating a lack of intent on the part of the
Respondent to bargain in good faith for a new collective-bargaining
agreement. Moreover, Kay’s total indifference to accurately communi-
cating the Company’s position, particularly since See’s simple question
was so intrinsically relevant to these particular negotiations, where the
amount of, and nature of concessions were at the heart of the negotia-
tions, would tend to substantiate this.
STANDARD MOTOR PRODUCTS 1485
were implementing our final offer of June 1, 1995 and this
was part of that proposal.

However, when See sent a copy of the material to Dan Trull,
Trull saw immediately that there were significant items in the
new plan not given before in the package the Respondent gave
to the Union on May 22. In particular Trull questioned how the
“Group Bonus Percentage” was to be calculated. The new
group percentage included an item 5, a 3.5-percent adjustment
for nonproduction and off-standard work. Trull had no idea
how this number had been arrived at and had not seen such a
number in other facilities. He saw item 4, referring to some-
thing called “fixed order value,” and he had no idea what that
was. He questioned what would happen if actual nonproduc-
tive time exceeded 3.5 percent, would employees begin to lose
incentive earnings. He also saw that this new system, contrary
to the “general rule” was only going to credit “pieces received
as good.” He questioned what the document meant by “deter-
mining how many production hours the group worked,” and
assumed that referred to “direct hours,” but wondered if it in-
cluded the off-standard adjustment. Trull had other questions
about how the Group Bonus Plan calculation was to be done.
Prior to a meeting set up for October 19, Lockhart showed
Trull some summary sheets from the Packaging Area, entitled
“EIS Brake Parts Operation Combined Report,” which Trull
reviewed. He learned that the Respondent was implementing a
12.6-percent PF&D, or manual, allowance in that area, and that
it was going to use an add-on method in applying the PF&D
allowance to the standard. Previously, most of the plant had
utilized a reduction method. Trull testified, and Respondent
offered no evidence to the contrary, that the use of an add-on
method increased the required output of employees for achiev-
ing a bonus as compared to a reduction method. None of the
items listed above had been specified in the May 22 proposal
given to the Union and, even Friedman admitted that the system
had not been finalized as of June 1.
Meanwhile, See sent a letter on October 18 in which he, inter
alia, asked if the Respondent was still subcontracting wheel
cylinders at 5500/day (excluding the 2000/day for the short
line) and was the Company still looking for $1.7 million in
concessions.
When the parties met on October 19, the Respondent simply
refused to negotiate over the Group Bonus Plan, which in-
cluded MOST. Friedman testified:

Well, they had Mr. Trull present at the meeting, and Mr. See
began asking whether we felt he had the right to negotiate
MOST and the incentive System, and we said, basically, that
he had his chance to do that prior to this meting on the 19th,
that we had invited the shop committee in to the meetings that
we had in October and that we felt that we would listen to his
ideas and suggestions and his thoughts and we would try to
make the System work and if he had thoughts or ideas we
would certainly take them into consideration.

The Respondent refused to negotiate on several grounds. As
notched by Friedman, they claimed the system had already
been agreed to. They also claimed that the Respondent did not
have to bargain because the parties were at impasse, and had
simply implemented its last proposal. Finally, Kay also
claimed the Respondent had a right to implement without hav-
ing to bargain in the first place, based purportedly on the ex-
pired contract. Additionally, when See had mentioned that he
believed the Union’s proposal was worth $1.2 million, Kay
demanded that See show the Respondent how. See said that he
would show him at the next meeting, but the Union was here to
negotiate about the MOST system, and told them to put their
request in writing, and Friedman did. The meeting, in Fried-
man’s own words, “got ugly” and ended shortly, with the Re-
spondent requiring the Union committee to go right back to
work or they would not get paid.
By letter dated November 3 Friedman informed See that the
amount of subcontracting was down to 4300/day. Friedman
once again declined to answer the Union’s question as to
whether the Respondent was still seeking $1.7 million in con-
cessions.
The next and last negotiating session took place on August
29, 1996. See gave the Respondent a new proposal, based on
the numbers the Respondent had been using throughout nego-
tiations, and which added up to $1,142,444. See spoke about
how the parties should resolve their differences, and get to-
gether and work on the training program. He said that while
the proposal did not itself include the MOST system, the Union
was willing to work with the MOST system with the Interna-
tional’s approval of the numbers. The Company caucused.
When they returned, Kay said if that proposal had been given in
June 1995, “it could have probably been accepted. But because
of the condition of what’s going on in the Company at this
time, it’s rejected.” Kay explained to the Union that the figures
in the original proposals, which the Union was using in its new
proposals, were no longer any good because of the changes
which had taken place in the Company, meaning the number of
employees then employed. By the summer of 1996 the average
“head count” of unit employees was down to about 225.
Meanwhile, the Respondent had continued implementation
of the Group Bonus Plan, which included the MOST system.
Moreover, there were variations in the new system in different
areas. When the Group Bonus Plan was implemented in Febru-
ary 1996 in the Hose Assembly Area, it appeared to be the
same as in the Packaging Area. However when the Respondent
implemented the Group Bonus Plan in the wheel cylinder de-
partment, a different off standard allowance, 5 percent, was
used. Further, the Union learned that the Respondent was using
the add-on method of applying the PF&D allowance in the
wheel cylinder and hose assembly areas, where a reduction
method had been used previously. Also, the Union learned that
the Respondent was using a 15.6-percent PF&D allowance for
certain areas.
3. Unilateral changes in terms and conditions
a. Subcontracting and layoffs
As notched above the Respondent greatly increased the sub-
contracting of both wheel cylinders and master cylinders be-
ginning about February 1995. Further, it appears that the origi-
nal amount of such increased subcontracting of wheel cylinders
had gradually gone down from 5500/day to about 4300/day by
November 3, 1995. By March 20, 1996, the Respondent had
“reduced its outsourcing of wheel cylinders by about 50 per-
cent.” These records appear to contradict the conclusionary
assertions at the hearing by Friedman that he “believe[s] it is
now back in house.” However, when confronted with his own
Statements to the Union that the Respondent had decreased to
4400/day, he changed his testimony to make it even more con-
clusionary. “I believe that the work that resulted in the layoffs
has been brought back in house.” However, when asked how
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1486
many wheel cylinders were currently being subcontracted, he
could not answer the question.
Both Friedman and Geoffrion gave similar testimony as to
how many employees were actually laid off as a result of the
increased subcontracting, limiting it to 13. Moreover, both
claimed that all 13 were recalled by the end of 1995 or early
1996. However, this testimony was unsupported by any re-
cords introduced by the Respondent at the hearing. The record
show as however, a far greater impact on the unit, which has
declined to about 225 employees, just about the number of lost
positions, 51, that the Union was originally informed about in
Friedman’s March 6, 1995 letter. Friedman’s letter said layoffs
would commence on March 31 and be done by about May 12,
1995, and would be spread throughout the plant.
On March 31, 1995, Geoffrion notified Unit Chairperson
Lockhart that 12 employees would be laid off effective April
15, 1995. Because employees had certain bumping rights under
the old contract, about 23 employees were actually affected.
On June 7 Lockhart was again notified of further layoffs. A
review of Lockhart’s records show as that about 10 employees
took actual layoffs at the time, while many were affected by the
bumping procedures. Further, it also show as many employees
were bumped into temporary jobs. On August 21, 1995, an
even greater number of layoffs occurred with about 42 employ-
ees actually being laid off, and 79 affected. However, the
bumping rights of unit employees were different at that time
because the Respondent had implemented its last contract pro-
posal, which thus affected who got bumped.
See wrote a letter on August 23, 1995, requesting informa-
tion about the increased subcontracting, requesting effects bar-
gaining over the new layoffs, and demanding that the Respon-
dent cease and desist from implementation its new layoff pro-
cedure.
Friedman responded by letter dated August 25:

1. By the time this layoff is completed, approximately
fifty people will be placed on layoff. These layoffs are not
the results of our decision to subcontract additional work
outside the plant. They are a result of declining sales and
a need to reduce our inventories. When the inventories are
back to a more manageable level, we anticipate recalling
these people back to work. The information we previously
gave you on subcontracting has not really changed.
2. Regarding the new layoff procedures, that was part
of our last proposal and nothing had changed since then.
3. Since these layoffs are not intended to be permanent
we believe the contract’s layoff/recall provisions as
amended in our last proposal should cover this situation.

See responded by letter dated October 6 reiterating his previous
requests, and stating that the inventories were higher based on
the subcontracting.17

17 The Respondent’s claim that increased inventory and not subcon-
tracting is the cause of layoffs, begs the question. It is undisputed that
the Respondent began greatly increasing subcontracting in February
1995, well before the layoffs. Friedman admitted that the Company
wanted the outsourced parts partly as insurance in case the Union
struck the plant on June 1. Therefore, inventory was obviously in-
creased by the subcontracting which took place prior to the layoffs and
the undisputed fact is that the Respondent continued to lay off employ-
ees during the period it was continuing to subcontract wheel cylinders
and master cylinders previously manufactured in the facility.
b. Unilateral implementation of the Respondent’s final offer
As notched above, the Respondent implemented its last pro-
posal effective on June 26, 1995. Further, it has continued such
action by implementing the new layoff/bumping procedures as
decribed above, and completed the implementation of the
Group Bonus Plan throughout the plant. Employees have been
disciplined under the MOST system as well.
c. Additional unilateral changes
On July 13, 1995, the Respondent’s plant superintendent
Scott McGregor approached Lockhart and informed him that
the employees in the hose assembly area had achieved 100-
percent productivity, and that the Company was going to pro-
vide pizza to them as a reward. Lockhart said they should not
do so because there was no contract, and he would file a griev-
ance. McGregor said they would do it anyway and proceeded
to do so.
About July 21 Mike Paulus approached Lockhart and in-
formed him that employees were requesting cold drinks on hot
days, and therefore the Company had planned to provide Ga-
torade to the employees. Lockhart objected to this because the
Company had a policy restricting food and drinks on the plant
floor. Lockhart said that he would file a grievance over the
Respondent doing things like this without negotiations with the
Union. Paulus said he was sorry Lockhart felt that way, it was
a safety issue, and the Company would go ahead and provide it,
which it did. Paulus admitted that no negotiations took place
because, in his eyes, safety issues are not negotiable.
d. The combination of jobs in the subassembly and wheel cyl-
inder department and the creation of a CNC Cell in the wheel
cylinder department
On or about August 25, 1995, Focus Factory Manager Steve
Levack spoke to Lockhart and informed him that the Company
would be combining jobs in the subassembly line. Lockhart
said the Company couldn’t do that, and should negotiate with
the Union about combining any jobs. Geoffrion informed him
that there were about seven employees affected, and only three
or four would be needed in the area once the combination was
accomplished. Geoffrion said that they were going to follow
the same procedure as in the past. The Respondent went ahead
with the combination, and it led to the layoff and reassignments
of certain individuals. At the hearing Geoffrion explained that
in the past when the Respondent combined jobs, he would no-
tify Lockhart, and after implementing it, the Union would
grieve if there was a problem. When the Union filed a griev-
ance, the Respondent asserted that it was following “both the
contract and past practice in job combination.” There was,
however, no contract, and no arbitration procedure in effect.
About October 9, 1995, McGregor informed Lockhart of an-
other job combination in the wheel cylinder department. Lock-
hart told McGregor that they could not do that without negotiat-
ing with the Union. McGregor said they were going to com-
bine them anyway. Lockhart then spoke to Geoffrion, and
advised him that the combination should be negotiated since it
would result in layoffs and Geoffrion said it was experimental.
The Company went ahead and combined the jobs, and the Un-
ion grieved this action. However, the Company discontinued
the combination because it felt it had not worked out and the
Respondent does not appear to deny that it altered the job duties
of the affected employees for several weeks, and did so without
negotiating.
STANDARD MOTOR PRODUCTS 1487
The management clause of the expired collective-bargaining
agreement gives management the exclusive right “to introduce
new or improved production methods.” Article 12.E sets out
the procedure to be followed when a new job is established.
The Company gives the Union a copy of the job description and
the Union has 30 days to grieve the job classification and its
slotting in the established labor grade scale. Geoffrion believed
he had given Lockhart notice of the changes.
Generally, according to the Respondent’s witnesses, when
job combinations were contemplated, the usual procedure was
for the Company to “run” the new job to see what was involved
and then resolve issues under the grievance procedure. Geof-
frion testified that UAW Time Study Engineer Danny Trull
preferred this process because he could not review a job in the
absence of the grievance and he liked to see the job actually in
operation so he could review it. Lockhart confirmed that there
had been a practice to see how new jobs operated and then
discuss the matter after the fact.
The Respondent maintains that this process was followed in
the subassembly department and in the CNC combination. The
Respondent gave notice of the intent to combine certain job
classifications in subassembly. Lockhart met with Geoffrion
and Geoffrion informed him that the Company would use the
same procedure as it had in the past. The Union then filed a
grievance proceeding without negotiating the impact on em-
ployees. The Respondent’s response was that it was following
the contract and past practice.
According to the Respondent there was no impact on em-
ployees due to the job combination. Lockhart initially believed
that two employees were impacted but then after review of his
layoff records he conceded on cross-examination that they were
not. The Union did not pursue its grievance.
The same process was followed in the CNC Cell. The Union
was given notice of a prospective change. Lockhart and Geof-
frion met and Lockhart testified that Geoffrion informed him
that this job combination was only on an “experimental basis.”
The Union filed its grievance and the Respondent indicated that
this was a “potential” change and it did “not yet know what
would happen or if it will actually work.” There was about a
ten day trial period, after which the Respondent decided not to
proceed with the job combination. The Union subsequently
requested that its grievance be placed “on hold.” The Respon-
dent agreed but took the position that if there was no further
action in 30 days the Company would consider the matter set-
tled or withdrawn.
e. The Respondent’s refusal to allow a safety inspection
On June 30, 1995, Steve Edgerly sent a letter to Friedman
requesting dates “as soon as possible” for an inspection by a
Health and Safety representative of the International Union
“due to several complaints.” Lockhart had related a number of
safety concerns to Edgerly, besides one regarding a pending
grievance about noxious fumes caused by an outside contractor
using epoxy paint, including slippery floors due to oil, loose
extension cords on the floor and ceiling, and unsafe machines.
Friedman called Edgerly about July 6 and asked him what spe-
cific complaints there were. Edgerly mentioned the grievance
about fumes caused by painting with epoxy, and also men-
tioned that there were slippery floors due to oil on the floor.
Edgerly did not hear from Friedman, so he sent another letter
dated July 13, 1995, requesting dates. Meanwhile, Friedman
had placed in the mail a letter dated July 12, 1995, in which he
stated he “wasn’t sure why you are requesting dates” for an
inspection, and asking Edgerly to put “in writing, what existing
conditions you are concerned about that would require such a
visit.” Edgerly responded immediately with a letter dated July
13 1995, in which he referred to pending grievances in safety
and repeating his request for dates for an inspection “to make
sure our members are working in a safe and healthy environ-
ment. Friedman did not respond until July 27, when he sent a
letter in which his accused the Union of retaliating against the
Company due to the State of contract negotiations, and asking
to be informed. “Why the visit is necessary, the identity, back-
ground and credentials of the person you wish to visit us and
your proposal concerning the scope of the visit.”
Edgerly did not receive that letter until August 7. He re-
sponded immediately with a letter that day in which he rejected
Friedman’s accusations, and again requested dates. He stated
that the Union is entitled “to check all conditions to see that
they are safe” and stated that if the Respondent did not supply
the Union with dates the Union would have “no alternative but
to contact OSHA. I don’t think you can refuse them.” The
Union never got a response to the August 7 letter. As a result,
Edgerly contacted OSHA, which then did a safety inspection.
The Respondent offered no evidence at trial as to any reason
why the Union should not be able to exercise its rights to have a
safety inspection other than the fact that Friedman “smell[ed]
something” because See had called him in June protesting the
Company’s implementation of its contract proposal and told
Friedman they were now “at war,” and the Union would be
calling OSHA and having the International Union conduct
safety inspections.
Credibility
In determining the credibility of the respective witnesses, I
have carefully considered the record evidence and have based
my findings upon my observation of the demeanor of the wit-
nesses, the weight of the respective evidence, established and
admitted facts, inherent probabilities and reasonable inferences
which may be drawn from the record as a whole. Gold Stan-
dard Enterprises, 234 NLRB 618 (1972); V & W Castings, 231
NLRB 912 (1977); and Northridge Knitting Mills, Inc., 223
NLRB 230 (1976). I tend to credit the account of what oc-
curred herein as given by the General Counsel’s witnesses.
Their testimony was given in a believable and forthright man-
ner, was generally consistent and corroborative of each others,
and more importantly consistent with the documentary and
other evidence present in the record. In contrast, the testimony
of the Respondents’ witnesses, was inconsistent at times and I
especially found the testimony and demeanor of Leonard
Friedman and Sanford Kay to be less than credible.
B. Analysis and Conclusions
The Unilateral Changes
Section 8(a)(5) and 8(d) of the Act obligate an employer to
bargain with the representative of its employees in good faith
with respect to “wages, hours and other terms and conditions of
employment.” NLRB v. Borg-Warren Corp., 356 U.S. 342
(1958); and Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964).
Section 8(a)(5) also obligates an employer to notify and consult
with a union concerning changes in wages, hours, and condi-
tions of employment before imposing such changes without
first giving the union an opportunity to bargain about them.
NLRB v. Katz, 369 U.S. 786 (1963); and NLRB v. Pinkston-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1488
Hollar Construction Services, 954 F.2d 306 (5th Cir. 1994).
Such prior notice to the union must be timely so that the union
may have a reasonable opportunity to evaluate the proposal and
present a counter proposal before the change takes police.
Giba-Greigy Pharmaceutical Division, 264 NLRB 1013
(1932); and M & M Contractors, Inc., 262 NLRB 1472 (1982).
In M & M Contractors, Inc., supra, the Board stated:

[A]n employer, as a part of demonstrating its diligence and
good faith must present the union with its detailed contract
proposals and permit the union a reasonable time to evaluate
the proposals. [Id.]

Moreover, the Board also stated therein:

When a union, in response to an employer’s diligent and ear-
nest efforts to engage in bargaining, insists on continually
avoiding or delaying bargaining, an employer may be justified
in implementing unilateral changes in the terms and condi-
tions of employment. See, e.g. AAA Motor Lines, Inc., 215
NLRB 793 (1974).

In Winn-Dixie Stores, 243 NLRB 972 (1979), the Board in-
dicated that absent extenuating circumstances, an employer
must bargain to impasse prior to implementing unilateral
changes in working conditions as supported by the Supreme
Court’s Statement in NLRB v. Katz, supra, that:

[w]e hold that an employer’s unilateral change in conditions
of employment under negotiation is similarly a violation of
Section 8(a)(5), for it is a circumvention of the duty to negoti-
ate which frustrates the objectives of Section 8(a)(5) much as
does a flat refusal.

The Board continued at page 974, “We conclude, however, that
the requirement that the parties reach impasse before a unilat-
eral change may be lawfully implemented, rather than merely
discuss a proposed change, is in accord with the basic terms
established by the Court in NLRB v. Katz . . . .”
Determination of whether an impasse exists, in turn, is usu-
ally dependent upon whether there is a “realistic possibility that
continuation of discussion . . . would have been fruitful.” Tele-
vision Artists AFTRA (Taft Broadcasting Co.) v. NLRB, 395
F.2d 622, 628 (D.C. Cir. 1968). Yet, before the issue of im-
passe becomes ripe for resolution, there first must be meaning-
ful negotiations which can be assessed to determine if contin-
ued discussion “would have been fruitful.” Thus, a genuine
impasse . . . is merely a point at which the parties cease to ne-
gotiate,” Hi-Way Billboards, Inc., 206 NLRB 22, (1973), re-
versed on other grounds 500 F.2d 181 (5th Cir. 1974); or when
negotiations reach the point at which the parties have exhausted
the prospects of concluding an agreement, Laborers Health &
Welfare Fund v. Advance Lightweight Concrete, 484 U.S. 539
(1983).
Moreover, where an employer has been rebuffed over a pro-
longed period in its efforts to diligently and earnestly seek bar-
gaining sessions, and, at least, demonstrates that a valid eco-
nomic reason exists for instituting changes already submitted to
the bargaining representative as proposals, no violation of the
Act is committed by implementing those proposals, absent
evidence showing that an unlawful motive existed for having
done so. M & M Contractors, supra; AAA Motor Lines, Inc.,
supra; and Mountaineer Excavating Co., 241 NLRB 414
(1979).
Additionally, as the court notched in NLRB v. Auto Fast
Freight, 793 F.2d 1126, 1129 (9th Cir. 1986):

There exists a narrow exception to the bargain to im-
passe rule: where, upon expiration of a collective-
bargaining agreement, the Union has avoided or delayed
bargaining, and the employer has given notice to the Un-
ion of the specific proposals the employer intends to im-
plement, the employer may unilaterally implement the
proposals without first bargaining to impasse, Stone Boat-
yard v. NLRB, 715 F.2d 441, 444 (9th Cir. 1983), cert. de-
nied 466 U.S. 937. . . . (1984). Accord: M & M Building
& Electrical Contractors, Inc. 262 NLRB 1472, 1476–
1477 (1982).

Consistent with that exception is the obligation of the parties
not to seek to stretch out negotiations by whatever strategy.
Southwestern Portland Cement Co., 289 NLRB 1264 (1988),
Eastern Maine Medical Center, 253 NLRB 224, 247 (1980). In
this regard, the Board has also recognized exceptions to the
general rule that prohibits an employer from proceeding with
changes until an overall impasse is reached; when the Union
insists on continually avoiding or delaying bargaining or when
“economical exigencies” require prompt action and the em-
ployer has given the Union notice of the proposals it intends to
implement and made “diligent and earnest efforts” to engage in
bargaining. Southwestern Portland Cement Co., supra; M & M
Building & Electrical Contractors, Inc., supra; Stone Boatyard
v. NLRB, supra; Fire Fighters, 304 NLRB 401 (1991); Bottom
Line Enterprises, 302 NLRB 73 (1991); and Serramonte
Oldsmobile, 318 NLRB 1 (1995).
Also, in Caravelle Boat Co., 227 NLRB 1355 (1977), the
Board quoted Taft Broadcasting Co., supra.

Whether a bargaining impasse exists is a matter of judgment.
The bargaining history, the good faith of the parties in nego-
tiations, the length of the negotiations, the importance of the
issue or issues as to which there is disagreement, the contem-
poraneous understanding of the parties as to the State of the
negotiations are all relevant factors.

Impasse is a defense to the charge of unilateral change. It must
be proved by the party asserting impasse—in this case the Re-
spondent. North Star Steel Co., 305 NLRB 45 (1991); and
Sacramento Union, 291 NLRB 552 (1988).18
The Respondent asserts in its brief that the above principles
apply in this case and that it met the Board’s standard for bar-
gaining. The Respondent states that the Company gave the
Union notice of its lack of competitiveness in the wheel cylin-
der product and the possibility that it would subcontract their
work unless cost savings could be achieved. The Respondent
then maintains that 8 months lather the Union still failed to
make any proposal and to engage in meaningful bargaining.
“In fact, the Union repeatedly asserted that it had no intention
of doing so.” Even Union Agent DeCastro concluded that the
Local Union was stalling the bargaining process.19 The Re-

18 Unlike the requirement for an impasse defense that both parties
perceive their bargaining to be at a point of deadlock, in analyzing the
validity of a dilatory bargaining defense, “a single party’s perception of
the other party’s tactics is a relevant consideration in determining
whether unilateral implementation is lawful.” Southwestern Portland
Cement Co. supra.
19 However, according to the testimony herein of the General Coun-
sel’s witnesses, what DeCastro was saying was that he perceived the
STANDARD MOTOR PRODUCTS 1489
spondent adds that “the Union’s only response was that the
Company’s proposals were ‘unrealistic’. It is the Respondent’s
position that continued bargaining with the Union would not
have resulted in an agreement and that therefore impasse ex-
isted between the parties.”
a. Subcontracting unit work and resulting layoffs
The consolidated complaint alleges that since about March 6,
1995, the Respondent subcontracted work normally performed
by unit employees, and has laid off unit employees as a result
of that subcontracting in violation of Section 8(a)(1) and (5) of
the Act.
The record evidence show as that the Respondent notified
the Union of its noncompetitive position in its wheel cylinder
business. The Respondent also supplied the Union with re-
quested information regarding its need for financial help. After
examining the Respondent’s financial records UAW Auditor
DeCastro reported to the Union that the Respondent was ex-
periencing serious problems in the wheel cylinder department
and concluded that cost reductions should be considered by the
Union. Moreover, the Respondent informed the Union that if it
did not achieve cost reductions by February 28, 1995, it would
be required to subcontract its wheel cylinder work out. How-
ever, the record evidence herein does not support the Respon-
dent’s assertion that the Union actually engaged in “stall tac-
tics” during this period.20
The Respondent in its brief asserts that the Union had no in-
tention of offering any economic proposals in response to the
Respondent’s request for labor cost savings to avoid subcon-
tracting wheel cylinder work; that the Respondent made every
effort to nether into meaningful negotiations; that the contract
language in the Connecticut Operations Agreement permitted
subcontracting of the wheel cylinder product line; and that the
Respondent met the Board’s standards and was authorized to
proceed with its plans. Except for the fact that the contract
language of the Connecticut Operations Agreement did permit
subcontracting of the wheel cylinder line, I do not agree with
the Respondents’ contentions.
Clearly, both subcontracting and layoffs are mandatory sub-
jects of bargaining. Davis Electric Wallingford Corp., 313
NLRB 375 (1995); and Public Service Co., 312 NLRB 459
(1993). The Respondent was therefore obligated to bargain
about the subcontracting which it engaged in beginning about
February 1995, and the layoffs, which resulted.
The Respondent in its brief states that the Traditional Taft
Broadcasting Co., 163 NLRB 475 (1967), enfd. 395 F.2d 662
(D.C. Cir. 1968), impasse standards had also been met. The
Company established a reasonable “target” of cost savings.
The Union continuously throughout the course of bargaining
stated that the Company was not realistic and the Union would
not agree to anything like its proposals and would not even

Respondent’s economic problem as serious and that it would not be in
the Union’s best interest to engage in stalling tactics, not that it was
actually engaging in stalling tactics.
20 While Paulus testified that during a conversation with DeCastro in
lathe August 1995 wherein DeCastro told him that “he had advised the
Union that we were in trouble and that it was not advisable to go into
any further stall tactics,” in his written memo of a phone conversation
between himself and DeCastro, on October 17, 1995, Paulus states that
DeCastro Stated that he advised the Union that our problems would not
just go away and “that delay tactics aren’t in the best interest.” Despite
the ambiguity, the record evidence itself does not support the fact that
the Union engaged in “stall tactics” as asserted by the Respondent.
make a counterproposal. When it is clear that continued bar-
gaining would not have resulted in an agreement, “impasse
exists.” However, the Respondent has failed to sustain its bur-
den of establishing that impasse existed when it subcontracted
the unit work. At the time the parties were negotiating for a
successor labor agreement, had only met six times, and the
Union had not even put forward an economic proposal. Nego-
tiations in fact continued on March 9, 1995, immediately after
the Respondent announced on March 6 that it had subcon-
tracted unit work, and that such subcontracting was “not can-
celable.” When subcontracting of the wheel cylinder work
occurred there is no evidence that there was a “realistic possi-
bility that continuation of discussion . . . would [not] have been
fruitful.” Television Artists AFTRA (Taft Broadcasting Co.) v.
NLRB, supra; and Caravelle Boat Co., supra.
The record in this case is also insufficient to show that there
were extenuating circumstances justifying the unilateral
changes at issue. Neither does the record evidence support any
defense based on the Union’s waiver. The Respondent appears
to be asserting that its actions were somehow justified by eco-
nomic exigencies. While the evidence does show that the Re-
spondent was suffering serious economic losses possibly since
June 1994 and thereafter, the Respondent’s own conduct raises
the question as to whether it viewed the problem as requiring
immediate attention. Friedman claimed in his March 6 letter
that “we have no choice, if we are to save any business, but to
take steps immediately to cut our losses.” Moreover, he
claimed that “we feel we have no other choice but to proceed
with our plans as permitted by our Letter of Agreement.”
There is no dispute that the Respondent had a problem with
price competition in its wheel cylinder and master cylinder
product lines resulting in serious financial loss. It knew of this
problem since June 1994. The Respondent had a contractual
procedure to be followed when confronted with such a competi-
tiveness problem, the Connecticut Operations Agreement, but
the Respondent chose not to follow that procedure, instead
seeking a new collective-bargaining agreement, knowing that
the Union had rejected any early deadline for such negotiations.
It consciously chose that path because it appears to have been
more concerned about the long-term solution rather than
achieving short-term cost savings. The only explanation in the
record for its February 28, 1995 deadline, was that it wanted to
have an outside source of wheel cylinders at the time the exist-
ing contract expired in case of a work stoppage by the Union.
That reason, preparing for a possible strike, is simply not the
kind of exigent circumstances that justifies unilaterally transfer-
ring unit work.21
Neither does the record evidence support any defense based
upon the Union’s waiver of its rights. A union may waive its
rights by a complete failure to respond to a proposed unilateral
change by requesting bargaining about it. Haddon Craftsman,
Inc., 300 NLRB 525 (1990); and Jim Walter Resources, Inc.
289 NLRB 1441 (1986). However, the Board has held that a
waiver of bargaining rights is not to be lightly inferred and
must be clear and unequivocally conveyed. Metropolitan Edi-
son v. NLRB, 460 U.S. 693 (1983); and Caravelle Boat Co.,
supra. The notice given of a proposed change must be suffi-
cient to give the union a “meaningful opportunity to bargain.”
21 As admitted in the Respondent’s brief, “Subcontracting the wheel
cylinder work did not resolve the problem but it reduced the hemor-
rhaging.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1490
Haddon Craftsmen, supra at 790. Here the parties, in effect,
had commenced bargaining regarding the issue of the need to
subcontract the work.
As stated in Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013 (1982);

The Board has long recognized that where a union receives
timely notice that the employer intends to change a condition
of employment, it must promptly request that the employer
bargain over the matter. To be timely, the notice must be
given sufficiently in advance of actual implementation of the
change to allow a reasonable opportunity to bargain. How-
ever, if the notice is too short a time before implementation or
because the employer has no intention of changing its mind,
then the notice is nothing more than informing the union of a
fait accompli.

Further, notice of the proposed changes must adequately set
forth what the changes entail, as well as grant sufficient time to
bargain. GRH Energy Corp., 294 NLRB 1011 (1989).
Moreover, waiver will rarely be found where parties are en-
gaged in collective bargaining for a collective-bargaining
agreement. Bottom Line Enterprises, 302 NLRB 373 (1991),
states:
When negotiations are not in progress, we can find a waiver
of a unions right to bargain over a change in the unit employ-
ees terms and conditions of employment on the basis of the
union’s failure to request bargaining if the union had clear and
unequivocal notice of the proposed change and was given that
notice sufficiently in advance of implementation to permit
meaningful bargaining. However, when, as here, the parties
are engaged in negotiations an employer’s obligation to re-
frain from unilateral changes extends beyond the mere duty to
give notice and an opportunity to bargain, it encompasses a
duty to refrain from implementation at all, unless and until an
overall impasse had been reached on bargaining for the
agreement as a whole. The Board has recognized two limited
exceptions to this general rule. “[When] a union, in response
to an employer’s diligent and earnest efforts to engage in bar-
gaining, insists on continually avoiding or delaying bargain-
ing,” and when economic exigencies compel prompt action.
See also Fire Fighters, 304 NLRB 401 (1991); and Daily
News of Los Angeles, 304 NLRB 511 (1991).
Nor can the Respondent justify a claim of union waiver as
the Union gave the Respondent the choice of two paths, and it
was the Respondent who chose to negotiate for a new collec-
tive-bargaining agreement. There was never any decision bar-
gaining as contemplated by the Connecticut Operations Agree-
ment, much less any competitiveness committee formed as
required by that agreement. The Respondent asked the Union
for early contract negotiations and the Union agreed to it. After
six sessions the Respondent was clearly unhappy with the pro-
gress of those negotiations so it unilaterally subcontracted unit
work and laid-off employees. Such conduct is simply not deci-
sion bargaining. The Respondent, prior to its March 6 an-
nouncement, never informed the Union which specific product
it was planning to subcontract, how much of that product, or
that it would lay off employees or how many employees or how
much it thought it could save by subcontracting and layoffs. At
trial Kay acknowledged that the Respondent did not think it
would save $1.7 million by the subcontracting and layoffs.
Therefore, the record is absolutely barren of any of the details
that would have been the subject of actual decision bargaining,
where the Union would have had a right to know all such facts
precisely in order to bargain about the Company’s decision.
Additionally, the Union did not waive its right to decision
bargaining by entering into The Connecticut Operations
Agreement itself. There simply is no hint of waiver of the Un-
ion’s statutory rights at all in that agreement, much less a “clear
and unequivocal” waiver as would be needed. See Public Ser-
vice Co., supra at 461. Nor can the Respondent argue that the
Union waived it rights somehow by trying to arrange to have
Bruce DeCastro meet directly and privately with the Respon-
dent’s production managers. The Union did not break off nego-
tiations, or even threaten to do so. but instead attempted to find
an alternative way to assist the parties by bringing in its expert
from Detroit who was specialized in helping such troubled
companies.22
It appears that Instead of engaging in decision bargaining
over the subcontracting and layoffs, the Respondent instead
used the threat of subcontracting, and its implementation, as
weapons in order to achieve a new contract on its own terms.
Threatening unspecified unilateral changes during the course of
collective bargaining for a new contact is not only not bargain-
ing in good faith, it is not bargaining at all with regard to the
subject of the threat, the decision to subcontract.
It is undisputed that the Respondent retained rights under the
Connecticut Operations Agreement, but it did not, by choosing
it’s course of action, achieve any greater rights, nor lessen any
of its obligations, under that Agreement. On the other hand, by
agreeing to the Respondent’s request for early contract negotia-
tions, the Union did not waive any rights that it had under the
Agreement. Had the Respondent decided in March 1995 that
the early contract negotiations were not achieving its objec-
tives, it could simply have, invoked the Connecticut Operations
Agreement, and followed the steps in that Agreement. In par-
ticular, it could have engaged in decision bargaining but did not
do so, and it has not established any of the affirmative defenses
to its unilateral conduct.
Moreover, the Respondent had actually already implemented
its decision to subcontract in February, thus presenting a fait
accompli to the Union and union waiver is not available as a
defense under such circumstances. Ciba-Geigy Pharmaceuti-
cals Division, supra. As the Court of Appeals for the Fifth
Circuit stated in Gulf States Mfg. v. NLRB, 704 F.2d 1390 (5th
Cir. 1983).

It is . . . well established that a union cannot be held to have
waived bargaining over a change that is presented as a fait ac-
compli . . . . “An employer must at least inform the union of
its proposed actions under circumstances which afford a rea-
sonable opportunity to counter arguments or proposals.” . . .
Notice of a fait accompli is simply not the sort of timely no-
tice upon which the waiver defense is predicated.

From all of the above, I find and conclude that the Respon-
dent violated Section 8(a)(1) and (5) of the Act when it unilat-

22 The Respondent asserts in its brief that DeCastro’s efforts to meet
with specific representatives of the Respondent “bypassing the Com-
pany’s representatives” was an unfair labor practice. See Medo Photo
Supply v. NLRB, 321 U.S. 678 (1944). I do not agree. This was only a
suggestion by the Union to assist in resolving issues, it did not actually
occur when the Respondent refused consent, and, in fact, the Respon-
dent’s representatives main negotiators met with the Union’s negotiat-
ing committee without the consent of the Union’s main negotiator, See,
and without his knowledge.
STANDARD MOTOR PRODUCTS 1491
erally subcontracted unit work and by laying off employees as a
result of that decision.
b. The implementation of the Respondent’s final offer
The consolidated complaint alleges that since about June 26,
1995, the Respondent has implemented the terms and condi-
tions of its last proposal for a collective-bargaining agreement
in violation of Section 8(a)(1) and (5) of the Act.
The Respondent implemented its last offer to the Union on
June 26, 1995, raising the defense of impasse to justify its uni-
lateral action. Impasse occurs when negotiations reach the point
at which the parties have exhausted the prospects of concluding
an agreement and further discussions would be fruitless. Labor-
ers Health & Welfare Fund v. Advance Lightweight Concrete,
484 U.S. 539 (1983). After bargaining to impasse, an employer
may make unilateral changes, as long as the changes are rea-
sonably encompassed by the employer’s preimpasse proposals.
Western Publishing Co., 269 NLRB 385 (1984). Furthermore,
after impasse had been reached on one or more subjects of bar-
gaining, an employer may implement any of its preimpasse pro-
posals, even if no impasse has occurred as to those particular
proposals which are put into effect. Taylor-Winfield Corp., 225
NLRB 457 (1976); and Taft Broadcasting Co., supra.
As indicated above, the bargaining history, the good faith of
the parties in negotiations, the length of negotiations, the im-
portance of the issue or issues to which there is disagreement,
the contemporaneous understanding of the parties as to the state
of the negotiations are all relevant factors to be considered in
determining whether or not impasse has been reached. Taft
Broadcasting, supra. As the Board stated in Hi-Way Bill-
boards, Inc., supra at 23:

A genuine impasse in negotiation is synonymous with a dead-
lock: the parties have discussed a subject or subjects in good
faith, and, despite their best efforts to achieve agreement with
respect to such, neither party is willing to move from its re-
spective position.

In addition to the traditional Taft analysis, the Board has rec-
ognized that impasse also exists when the union has avoided or
delayed bargaining and the employer has given notice of the
proposals it intends to implement. See Southwestern Portland
Cement Company, supra; M & M Building and Electrical Con-
tractors, Inc., supra; Stone Boatyard v. NLRB, supra; Fires
Fighters, supra; Bottom Line Enterprises, supra; and Ser-
ramonte Oldsmobile, Inc., supra.
The Respondent asserts that an analysis of the overall nego-
tiations show as that the Union consciously sought not to reach
agreement for a collective-bargaining contract. This is not
supported by the record evidence.
Moreover, the circumstances alluded to in the Respondent’s
brief as evidence of the Union’s asserted conscious effort to
avoid reaching an agreement are not substantiated in their nega-
tive aspect attributed to them to support its assertion. For ex-
ample: Union representative See’s admission that he didn’t
look forward to presenting to the Union’s membership propos-
als which might require a reduction in their wages and benefits
(an understandable feeling on his part) but he did so; DeCas-
tro’s advice to See that in view of the Respondent’s problems,
the Union should not consider engaging in any delay tactics (it
is unclear in the record as to whether the Union was actually
doing so at the time as evidenced by Paulus’ testimony as to
this and his written memo of a lather conversation with DeCas-
tro); the Union’s alleged commission of an unfair labor practice
“in making repeated “efforts to bypass the designated Company
representatives “(while DeCastro sought to met with Company
officials without the presence of the Respondent’s designated
bargaining representatives, this was never made a condition of
the Union’s continuing to bargain with the Respondent, never
took place in any event and, instead, in fact, the Respondent’s
representatives met with the Union’s bargaining committee
without the presence of See, its main negotiator); during the
period from January 11, to March 9, 1995, while the Union
repeatedly stated to the Company that its proposals were unre-
alistic, however, the Union never used its belief in this nature to
discontinue negotiations or to bargain offering its own counter-
proposals toward a bargaining agreement; the March 10, 1995
incident, where the Respondent’s representatives caucused
shortly after the meeting commenced and after not coming back
for a few hours, it found that the Union representatives had
gone to lunch “with no notice,” (an apparent mix up in commu-
nication between the parties adequately explained in the record)
after which, the Respondent then concluded the meeting in
apparent anger, and despite the above the Respondent admits in
its brief that “[t]he parties continued to meet and discuss eco-
nomic proposals as well as the proposals offered by the Union
during meetings in April 1995.”
Additionally, according to the Respondents own brief, the
parties continued to negotiate and discuss proposals from May
1, 1995, on. For example: on May 1, 1995, Friedman detailed
the Respondent’s response to the Union’s “51 proposals” pre-
sented; the Union’s proposal was discussed during the May 4
and 5 meetings; on May 22, 1995, the Union “reiterated” its
position that the Union’s offer would not amount to the $1.7
million savings sought by the Respondent, on May 24, 1995,
the Union revised its “regressive” proposal to add additional
holidays and on May 30, 1995, reiterated its position that the
Respondent’s economic proposals were unrealistic; on May 31,
1995, the Respondent’s economic proposals were discussed and
each party rejected the economic proposals of each others; on
June 1, 1995, the parties presented their final proposals with the
Union informing the Respondent that it would not recommend
the Respondent’s offer to the union membership for approval
(the record evidence indicates that only the Respondent’s pro-
posal was in the nature of a final offer), etc. There were ex-
changes of letters between the parties from June 2, 1995, to
about June 25, 1995, in which the Respondent declared an im-
passe in negotiations. The above are set forth in more detail
hereinbefore.
Under the circumstances present in this case, I do not find
that the Respondent has sustained its burden of establishing that
an impasse was reached in the negotiations at the time that it
was apparently declared on June 14, 1995.
It is well settled that for impasse to be found the parties must
have reached “that point of time in negotiations when the par-
ties are warranted in assuming that further bargaining would be
futile.” Patrick & Co., 248 NLRB 390 (1980). In considering
the factors necessary to find that a bargaining impasse exist, I
find that the prior bargaining history and the parties agreement
in the past and present for the early opening of negotiations for
a new successor bargaining agreement does not favor a finding
of impasse. Alsey Refractors Co., 215 NLRB 783 (1974).
Further, the negotiations were held over a period of several
months and serious and important issues remained open at the
time the Respondent implemented its final offer. Moreover the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1492
movement of the Union in this case especially just prior to June
14, 1995, does not justify the Respondent’s conclusion that the
parties were deadlocked. Old Man’s Home of Philadelphia,
265 NLRB 1632 (1982).
Clearly, the Union did not believe negotiations were at an
impasse. Further, there is sufficient objective evidence to jus-
tify its belief. The Union made its first serious economic pro-
posal right before impasse was declared, including a 5-percent
reduction in wages, and which by the Respondent’s own esti-
mation was valued in total at $650,000. The Respondent itself
moved that day in response to the Union’s movement, and inter
alia, dropped its wage cut proposal from 10 to 8 percent.
Moreover, in the Union’s last offer on June 1, it indicated that it
would accept a two-tiered wage system, and made a substantial
movement with regard to vacation pay. On the contrary, the
Respondent valued its own final offer at about $1.35 million,
down from $1.7 million, and the meeting closed with the Union
expressing a willingness for the first time of accepting the Re-
spondent’s MOST system with certain conditions. There sim-
ply was no objective basis for finding impasse at that time.
Furthermore, it is important to note that the Respondent had
described its new group bonus system, including MOST, as one
to the “linchpins” of the whole bargaining process, yet Fried-
man admitted that it was not even finalized on June 1. The
Union had serious questions and reservations about what had so
far been presented to it, but was making serious movements
towards accepting it. Moreover, the fact that the Respondent
dramatically changed its productivity and wage proposals on
May 22 further militates against a finding of impasse. Having
waited so long to make its “linchpin” proposal, it was incum-
bent on the parties to explore these new areas fully and those
remaining to be decided. See Herman Bros. Inc., 302 NLRB
724 (1992).
The Respondent claimed that it regarded the Union’s second
proposal on June 1 as being regressive. It did not, however,
seek to ask questions about the ambiguities it professed to per-
ceive. Moreover, it was the Respondent who put forth the last
proposal that day, one which they estimated at about $1.35
million. Thus, the final note of the day continued to be one of
further movement. Additionally, the claim that the Union was
being regressive on June 1 is not borne out by the most conser-
vative analysis of the Union’s proposals. Totaling the Union’s
concessions in that first offer, while not even giving any credit
for its proposal to eliminate “red-circles” after 3 years amounts
to $556,012. However, if credit is given for eliminating red-
circles, the figure is significantly greater and totals $790,302.
In the Union’s second proposal, there was an ambiguity as to
whether the Union still included washup time. Assuming it did
not, the Union’s second proposal was still greater than its first
because the Union added a two-tiered wage proposal
($125,267); eliminated 1 sick day ($28,969); and eliminated the
5th week of vacation, while substituting bonuses, which pro-
posal Kay valued at $27,000. Thus, even if washup time was
not included ($144,844.) then the total of the Union’s second
proposal was $572,024. If it was to be included, while not
counting red-circles, its proposal was worth $716,868. If red-
circles, were included, the total would have been $951,158. It
is also significant to note that the Respondent was itself making
movement on the red-circles, and in its last proposal had of-
fered to keep them for a year. Thus, the parties were in agree-
ment on removing red-circles, and had narrowed their differ-
ences down to 2 years as to when that removal would be made
effective.
Thus, no matter how one analyzes the Union’s second pro-
posal, the Union was clearly moving in areas of importance,
and in the direction of the Respondent. The Respondent itself
was moving towards the Union. The declaration of impasse
was simply premature, as there were many areas in which to
explore continual movement. Instead, the Respondent declared
impasse, and has not shown any desire to seriously negotiate
since.
In Cal-Pacific Furniture Mfg. Co., 228 NLRB 1337 (1977),
the Board found that the willingness to make further conces-
sions in some areas suggested a willingness to make further
concessions in order to reach agreement. The other party is not
justified in concluding that negotiations are at an impasse sim-
ply because concessions have not been made in the area it finds
most crucial or the concessions themselves have not been suffi-
ciently generous. The union’s concessions were significant
enough to reasonably suggest that further concessions might be
forthcoming and the Respondent’s conclusion that a deadlock
existed in the face of the union’s concessions is unwarranted.
Old Man’s Home of Philadelphia, supra.
In these circumstances, I find and conclude that the parties
were not at impasse when the Respondent unilaterally imple-
mented its last contract proposal, and that the Respondent’s
action, therefore, circumvents the duty to bargain in violation of
Section 8(a)(1) and (5) of the Act.23
Also, although an employer who has bargained in good faith
to impasse normally may implement the terms of its final offer,
it is not privileged to do so if the impasse is reached in the con-
text of serious unremedied unfair labor practices that affect the
negotiations. Noel Corp., 315 NLRB 905 (1994); Columbia
Chemicals Co., 307 NLRB 592 fn. 1 (1992), enfd. mem. 993
F.2d 1536 (4th Cir. 1993); J. W. Rex Co., 308 NLRB 479
(1992), enfd. mem. 998 F.2d 1003 (3d Cir. 1993). Therefore,
the Respondent was also not in a position to declare impasse.
The Respondent’s decision to subcontract and layoff employees
which I found herein to be a violation of Section 8(a)(1) and (5)
clearly and dramatically effected the parties negotiations.
Once the Respondent announced that it was subcontracting
wheel cylinders and planned to lay off 51 employees, negotia-
tions were affected. As See stated, “[T]he Union felt they were
holding a gun to our head over this issue.” The following meet-
ings in March were encompassed discussions over the subcon-
tracting, or else broke down completely, with the Respondent
leaving the meeting on March 10, and refusing to meet at all on
March 15. The March 21 meeting continued bickering over
why the Respondent refused to meet on March 15. The March
29 meeting was delayed because of the Respondent’s initial

23 The Respondent asserts in its brief that:
The Administrative Law Judge should recognize that the
Company’s economic circumstances of losing $5 million since
discussions began in June 1944 made it clear that it was not going
to agree to any proposal which did not include serious and valid
cost reductions. The Union proposal did not do so. The Union
clearly did not intend to reach agreement with the type of cost
savings the Company was looking for. Virtually all of its propos-
als contained clearly unacceptable contingencies which it knew
the Company could or would not accept.
This would appear to be the Respondent’s assessment thereof
and suggests that the Respondent’s approach to bargaining with
the Union was for the Union to accept an agreement on its terms
or no agreement at all.
STANDARD MOTOR PRODUCTS 1493
refusal to meet with a mediator present. When the parties met
that day, the meeting broke down again in mutual recrimina-
tions with See asking the all-too-relevant question. “What
good is it to negotiate $1.7 million if you’re going to lay off
people?” The Respondent’s sense of urgency seems to have
dissipated and there were only two meetings in April, one of
which, April 12, entailed effects bargaining.
On May 1, the Respondent submitted a list of revised pro-
posals which Friedman described as “must be included if we
are to reach agreement.” The list totaled more than $2.1 mil-
lion. Moreover, the letter informed the Union that it would be
presenting a revised productivity proposal on May 22, just 8
days prior to the end of the contract. When the Union informed
Friedman on May 5 that the Union was not prepared to meet
with H.P. Maynard’s representative on May 22 because Trull
could not be present, the Respondent announced that there
would be no more negotiations until the Union did meet with
H.P. Maynard. Moreover, the Respondent broke off negotia-
tions on May 5 because it no longer wanted to review the Un-
ion’s proposals. The pattern seems unmistakable—once the
Respondent announced its decision to subcontract and lay off
employees, its consistent demeanor was one as See accurately
described, “it was their way or the highway.”
This conduct persisted throughout the remaining negotia-
tions. When the parties met again on May 22, the Respondent
now demanded a group bonus incentive system to replace the
existing individual based incentive, and demanding a wage
reduction of 10 percent, an average of $1.31 per employee,
which was a dramatically deeper cut from the 50 cents per em-
ployee previously on the table. When the Union submitted
questions on June 6 concerning this complex new system the
Respondent’s effective response was to immediately declare
impasse on June 14.
Moreover, when the parties reached dramatic progress on
June 1, the Respondent failed to ask questions they claimed to
have had to better understand the Union’s proposals. The evi-
dence indicates that the Union and the Respondent had closed
the gap between them by about a minimum of $900,000—$1
million, which was well over 50 percent of the $1.7 million
originally sought, and the gap may actually have been even
smaller than that. The inference is inevitable that the Respon-
dent had in fact once again changed its demands, and further
negotiations might have disclosed that fact. Proof of that is
shown by its conduct on June 16, for when the Union once
again increased its wage reduction proposal from 5 to 6 percent
which meant that, as Kay described in, “hard” money the Union
and Company had closed the gap between their proposal down
to 2 percent as the Company sought 8 percent. That meant they
were only $100,000 apart on the wage proposal after starting
off over $500,000 apart. The Respondent rejected the proposal
on the basis that the Union conditioned its proposal on bringing
back the subcontracted work and claimed that was regressive.
Yet all along the Respondent had told the Union that if the
concessions were achieved, the work would be returned.24

24 Kay and Friedman claimed that by the use of the word “all,” the
Union’s proposal was ambiguous, and could be interpreted to mean
work which had always been subcontracted, but they did not bother to
ask for an explanation. The General Counsel in his brief poses that the
Respondent did not want a clarification because it intended to reap the
financial savings of its layoffs and subcontracting, and still demanded
deep cuts from the Union, but did not want to have to disclose that.
The lack of the Respondent’s interest in reaching agreement
was conclusively shown by its refusal on July 13 and thereafter
to even tell the Union how much it was seeking in concessions.
Any question about the Respondent’s position became clear
when on August 29, 1995, it informed the Union that the fig-
ures the parties had relied on since February 1, 1995, the fig-
ures prepared by the Respondent for negotiations were no
longer valid, because of the massive decrease in unit employ-
ees, a decrease almost exactly forecast in Friedman’s March 6
letter of 51 employees. It had in fact unilaterally implemented
those concessions.
The record evidence illustrates that the Respondent began a
process in June 1994 in which it linked the prevention of in-
creased subcontracting of its products to achieving major con-
tractual concessions from the Union. When it went forward
and unilaterally subcontracted, prior to impasse, the negotia-
tions were permanently adversely affected, and the previous
ground of these negotiations, the preservation of unit work,
shifted. A review of the entire record conclusively establishes
that the subcontracting of unit work, and the concomitant lay-
offs, did “seriously affect the negotiations.” Accordingly, the
parties were not at legal impasse and the Respondent was not
privileged to declare impasse as it did on June 14, 1995, and to
unilaterally implement its contract proposals on June 26, 1995.
By so doing the Respondent violated Section 8(a)(5) and (1) of
the Act.
c. The implementation of the Respondent’s Group Incentive
Bonus Plan
The consolidated complaint alleges that about October 30,
1995, the Respondent implemented a new group incentive bo-
nus plan in violation of Section 8(a)(1) and (5) of the Act.
As found hereinbefore, no lawful impasse had been reached
at the time the Respondent unilaterally implemented its last
contract offer. Since the Respondent implemented its new
group incentive bonus plan system as part of its final offer this
violated Section 8(a)(5) and (1) of the Act since no lawful im-
passe had been reached at the time it was implemented. What
the Respondent presented to the Union in September 1995 was
different in fundamental ways from what had been presented in
May 1995. Even Friedman admitted that the plan had not been
finalized on June 1, 1995. The Respondent was not privileged
to go forward and unilaterally “finalize” the plan without giving
the Union the opportunity to bargain about it. When an em-
ployer changes its bargaining proposal, it must give the union a
meaningful opportunity to negotiate about the new proposals
and to provide the Union a basis for understanding it. Herman
Bros. 307 NLRB 724 (1992). The Respondent refused to do so
in this case.
The Respondent also asserted a contractual right to imple-
ment. However, no contract existed. Even assuming that under
the expired contract the Respondent would have been able to
implement some of the changes in the incentive system, any
alleged waiver of union rights to bargain over such changes
contained in that contract, expired along with the contract and
the Union, by its conduct, did not waive its right to bargain.
The Respondent cannot assume the right to act unilaterally by
changing terms and conditions of employment based on a
waiver in the expired contract. Moreover, “The Board requires
waiver of bargaining rights under Section 8(a)(5) to not be
lightly inferred, but must be clear and unmistakable. Such
waiver by the Union was not present in this case. See Our
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1494
Lady of Lourdes Health Care Center, 306 NLRB 337, 339–340
(1992); and Central Services, 303 NLRB 381, 484 (1991).
Moreover, the Respondent’s proposal of May 22, 1995,
called for giving the Company broad discretion to establish
standards and “reasonable allowances.” As Trull testified, the
whole question of what standards are, and how they are imple-
mented, are at the heart of an incentive system. While the Un-
ion clearly could have agreed to such a system, thereby waiving
its rights to negotiate over any changes in those standards, it did
not do so. No agreement was ever reached.
Further, See’s expression of willingness to accept MOST
with certain conditions made at the end of negotiations on June
1, in the context of trying to achieve an agreement, did not
constitute an ‘“agreement” in the sense of a collective-
bargaining agreement, or a waiver of its right to bargain. See’s
June 6 letter would dispel any notion that the Union had waived
any rights to bargain, much less that it had agreed to the Re-
spondent’s proposals. Thus, when the Respondent imple-
mented its new incentive system, with new allowances and
standards incorporated therein, it was in effect claiming to have
implemented a system which gave it the unilateral discretion to
set such standards and allowances. The Board had held that
Respondent cannot unilaterally implement a system giving it
such broad discretion over a mandatory subject of bargaining,
even if a lawful impasse existed. McClatchey Newspapers,
Inc., 321 NLRB 1386 (1996); and Central Services, supra.
Accordingly based on all of the above, I find and conclude that
the Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally implementing its new group incentive bonus sys-
tem.
d. The Union’s request for a health and safety inspection
The consolidated complaint alleges that since on or about
July 12, 1995, the Respondent has refused the Union’s request
for access to its facility for a safety and health inspection in
violation of Section 8(a)(1) and (5) of the Act.
In Holyoke Water Power Co., 273 NLRB 1379 (1983), affd.
778 F.2d 49 (1st Cir. 1985), the Board stated:

Rather, each of two conflicting rights must be accommodated
Fafnir Bearing Co. v. NLRB, 362 F.2d 716 (2d Cir. 1966).
First, there is the right of employees to be responsibly repre-
sented by the labor organization of their choice and, second,
there is the right of the employer to control its property and
ensure that its operations are not interfered with.

In balancing these rights, when access is ordered it “must be
limited to reasonable periods so that the Union can fulfill its
representation duties without unwarranted interruption of the
employer’s operations.” Id. Health and safety conditions are a
term and condition of employment about which an employer is
obligated to bargain on request and relevant to the Union’s
representation obligation. Minnesota Mining Co., 261 NLRB
27 (1982). Therefore, the Union has a right to gather informa-
tion to investigate legitimate grievances and employee com-
plaints including the right to a health and safety inspection of
the Respondent’s plant. Holyoke Water Power Co., supra.
In this case the Union had been presented with a number of
complaints from employees, and sought to have an expert from
the International Union do an onsite inspection of the condi-
tions complained about, including an earlier one which had led
to a number of employees suffering negative reactions due to
noxious fumes in the plant, and slippery oil spots on the work
floor, loose wires and unsafe machines. There was no reason-
able alternative to an onsite inspection.
The Respondent argues that on June 26, 1995, it announced
its intention to implement its final offer and that the Union on
the next day threatened to bring in OSHA and an International
Union safety expert from the Union “to turn up the heat” and
“declaring war” on the Respondent according to Friedman’s
testimony. The Respondent asserts that a letter from Steven
Edgerly, the Union’s treasurer requesting “dates during which a
health and safety representative from the International Union
can come and look into these problems” was issued as part of
the Union’s retaliatory campaign. Moreover, in an exchange of
letters between Friedman and Edgerly, Friedman requested to
know the conditions which the Union were alleging were un-
safe, the name of the health and safety expert from the Union
and the need for the inspection in view of the Union’s earlier
Statement about “using the International safety representative
in retaliation for the Employer’s posture in negotiations.”
Edgerly responded that the Union had “a right to tour the plant
to see that [the employees] are working in a safe environment.”
The Respondent also points to the fact that article 8, section 13
of the collective-bargaining agreement provides for a safety
committee which includes union representation.
However, I do not find that this affects the Union’s right to
have an on-site inspection by an expert from the International
Union in view of the testimony that employees had complained
about safety conditions in the plant. I am aware of the Respon-
dent’s arguments regarding the threat of retaliation by See and
that request might be in furtherance of that threat. This appears
to be speculation on its part with no evidence in the record
actually substantiating this. Be that as it may, the safety of the
employees is paramount and while I find that the Respondent
must comply with the Union’s request, it should be accom-
plished with the realization of the right of the Respondent not to
have its operations interfered with. Therefore the Respondent
should in conjunction with the Union set mutually acceptable
and reasonable times providing the Union with access to its
facility for a safety and health inspection.
From all of the above, I find and conclude that the Respon-
dent’s refusal to provide the Union access to its facility for a
safety and health inspection violated Section 8(a)(1) and (5) of
the Act.
e. Unilateral changes in the subassembly department and the
wheel cylinder department and the creation of a CNC Cell in
the wheel cylinder department
The consolidated complaint alleges that the Respondent
about August 25, 1995, combined job classifications in the
subassembly department and about October 9, 1995, combined
job duties and created a CNC Cell in the wheel cylinder de-
partment in violation of Section 8(a)(1) and (5) of the Act.
The Respondent alleges that the management clause of the
expired collective-bargaining agreement gives it the exclusive
right “to introduce new or improved production methods” and
the nature of its operations requires changes in manufacturing
methods or the institution of new machinery necessitating job
changes from time to time. It asserts that the job combinations
were treated exactly as always between it and the Union and
that the Respondent had given notice to the Union of an intent
to make such changes. The jobs were “run” and the parties met
in the grievance procedure to resolve the issues. Thus, the par-
ties precisely followed the established procedures of the re-
cently expired labor agreement.
STANDARD MOTOR PRODUCTS 1495
The Respondent maintains that this process was also fol-
lowed in the subassembly department and in the CNC combina-
tion. The Respondent gave notice of the intent to combine
certain job classifications in subassembly. Lockhart met with
Geoffrion and Geoffrion informed him that the Company
would use the same procedure as it had in the past. The Union
then filed a grievance proceeding without negotiating the im-
pact on employees. The Respondent’s response was that it was
following the contract and past practice.
According to the Respondent the same process was followed
in the CNC cell. The Union was given notice of a prospective
change. Lockhart and Geoffrion met and Lockhart testified that
Geoffrion informed him that this job combination was only on
an “experimental basis.” The Union filed its grievance and the
Respondent’ responded that this was a “potential” change and it
did “not yet know what would happen or if it will actually
work.” There was about a then day trial period. The Respon-
dent decided not to proceed with the job combination. The
Union subsequently requested that its grievance be placed “on
hold.” The Respondent agreed but took the position that if
there was no further action in 30 days the Company would
consider the matter settled or withdrawn.
The Respondent also alleges that when it made its final offer,
it only sought to change certain provisions (primarily eco-
nomic) of the contract and did not attempt to modify its man-
agement provisions which gave it the right to introduce new
and improved production methods. Additionally, the Respon-
dent states that it followed the procedure it had previously es-
tablished with the Union of first “running” a job and then han-
dle disputes by the grievance procedure and was therefore au-
thorized to proceed with the job combinations.
The Board has held that following the expiration of a collec-
tive-bargaining agreement, the terms of its management-rights
clause survive as terms and conditions of employment just as
the benefit provisions of such an agreement survive. St. Mary
& Elizabeth Hospital, 282 NLRB 73 fn. 13 (1986); Cummins
Component Plant, 259 NLRB 456 (1981).
In Our Lady of Lourdes Health Center, supra, the Board held
that an employer may make unilateral changes in an expired
contract where they were contemplated by the quoted provision
of the expired contract and are “a mere continuation of the
status quo. NLRB v. Katz, supra; and Garment Workers Local
512 v. NLRB, 512 F.2d 705 (9th Cir. 1996). Whether a change
is a permissible continuation of the status quo turns on the de-
gree of discretion involved.
The management-rights clause of the expired contract gives
the Respondent the right “to introduce new or improved pro-
duction methods.” This language does not specifically spell out
the details of any change that might be made. Quite obviously,
then, the changes entailed the exercise of considerable discre-
tion and were not “a mere continuation of the status quo.” Our
Lady of Lourdes Health Center, supra.
Additionally, I conclude that nothing in the expired collec-
tive-bargaining agreement constituted a waiver binding on the
Union, and that the Union, by its conduct, did not waive its
right to bargain over the changes. Our Lady of Lourdes Health
Center, supra; and Central Services, supra.
I find and conclude therefore that the combining of job clas-
sifications in the subassembly department and the combining of
job duties and the creation of a CNC cell in the wheel cylinder
department, without giving the Union an opportunity to bargain
about these changes violated Section 8(a)(5) and (1) of the Act.
f. Additional alleged violations of Section 8(a)(5) and (1)
of the Act
The consolidated complaint alleges that the Respondent vio-
lated Section 8(a)(1) and (5) of the Act by granting a bonus
meal to certain unit employees about July 15, 1995, for achiev-
ing production goals and about July 21, 1995, changed its plant
rules by providing drinks to employees in working areas.
Testimony herein indicates that the Respondent has a rule
which permits water to be used on the plant floor but restricts
other beverages. During the summer of 1995 there were an
unusual number of excessively hot days. On July 20, 1995, at a
meeting of the Joint Company/Union Safety Committee this
issue was raised and it was determined that Gatorade stations
would be set up when the temperature exceeded 90 degrees, but
that the general policy of restricting food and drink on the shop
floor would otherwise remain unchanged. Matters relating to
health and safety are the subjects of the safety committee dis-
cussions and the loss of potassium on hot days was considered
a health issue. The use of Gatorade was the Respondent’s re-
sponse to address this concern.
Operations Manager Paulus met with Lockhart and Lockhart
told him that employees had been upset about the implementa-
tion of the no food and drink policy and that utilizing Gatorade
would contradict the policy. According to Paulus, Lockhart did
not seek to negotiate over the issue. Thus, on July 21, 1995, the
Company issued a notice informing employees that Gatorade
would be available at dispensing stations on 90-degree days.
The Respondent asserts that this was not inconsistent with simi-
lar practices by the Respondent which has regularly supplied
other first aid supplies to employees.
On July 13, 1995, Lockhart was also informed that certain
employees in hose assembly were going to be offered pizza by
the Company. Lockhart said he thought this was a bad idea
because there was no contract in place. The Respondent alleges
that it had often given minor food items to employees in situa-
tions such as the completion of inventory and the achieving of
certain department objectives.
The General ‘Counsel argues that the Respondent presented
the Union with a fait accompli when it changed its rules on
food and drink and rewarded employees for achieving stan-
dards by giving them a pizza meal. However, once the contract
has expired any purported waiver of the Union’s right to bar-
gaining regarding such unilateral changes expired with it. Our
Lady of Lourdes Health Center, supra; and Central Services,
supra. The General Counsel also asserts that the Respondent
may argue that these changes are de minimis. However, giving
bonus meals to reward productivity achievements at the time
the parties are negotiating over the Respondent’s productivity
proposals is destructive of the bargaining process. The Re-
spondent’s unilateral changes in this connection cannot be
separated from its other unlawful conduct, and should not be
regarded as de minimus in these circumstances.
The Respondent asserts that the granting of Gatorade to its
employees was not a term and condition of employment since it
was not related to any employee objective or performance but
was simply offered in response to a potential health risk.
Moreover, the Respondent asserts that the record indicates that
it complied with the bargaining obligations which might exist
since the idea of utilizing Gatorade came from the Joint Safety
Committee the appropriate forum to discuss such items and
“additionally the Union never sought to negotiate over the im-
plementation of the Gatorade Policy. Lockhart simply advised
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1496
the Company that he thought it was a bad idea because it ap-
peared to contradict the existing rule.” However, the record is
unclear as to whether the parties engaged in actual bargaining
over the Gatorade policy.
The granting of Gatorade contradicts the Respondent’s pol-
icy of not allowing food or drink on the plant floor. Moreover,
as the Respondent acknowledges this was in response to a po-
tential health risk. Under these circumstances I find that the
Gatorade policy related to the terms and conditions of employ-
ment requiring the Respondent to refrain from unilaterally
changing its policy without first bargaining with the Union.25
As the Board stated in Stone Container Corp., 318 NLRB 336
(1993):

Bottom Line Enterprises, above, stands for the proposition
that when parties are engaged in negotiations for a collective-
bargaining agreement, an employer’s obligation to refrain
from unilaterally discontinuing an established practice ex-
tends beyond the mere duty to give notice and an opportunity
to bargain, rather, except for certain circumstances not present
here, it encompasses a duty to refrain from implementation at
all, unless and until an overall impasse had been reached on
bargaining for an agreement as a whole.

Additionally, the Respondent’s providing pizza for employ-
ees in the hose assembly area when they achieved 100-percent
productivity was already related to performance or production
standards and was a term and condition of employment rather
than a gift. Benchmark Industries, Inc., supra.26
From all the circumstances present in this case, I find and
conclude that the Respondent violated Section 8(a)(1) and (5)
of the Act when it unilaterally instituted its policy of providing
Gatorade to its employees changing its rules on food and drink
on the plant floor and by providing pizzas to its hose assembly
employees for achieving certain standards without first bargain-
ing with the Union.27
IV. THE EFFORTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operations of the Respondent described in
section I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several states
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist

25 Contrast Benchmark Industries, 270 NLRB 22 (1984).
26 In Stone Container Corp., supra the Board held that “the company
picnic, the Christmas gift certificate, and the Thanksgiving dinner was
not related to any performance or production standards, and thus were
gifts rather than terms and conditions of employment.
27 I am aware that in Stone Container Corp., supra, the Board held
that “awarding this small amount of food did not rise to the level of a
benefit or compensation that required bargaining regarding the giving
of donuts, hot dogs or barbecue lunches if there were no lost - time
accidents for specified time periods.” However, I find that in the cir-
cumstances in this case and my finding of other serious unfair labor
practices herein, that Stone Container Corp., supra and Benchmark
Industries, Inc., supra are distinguishable.
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act.
Having found that the Respondent unlawfully unilaterally
implemented the terms and conditions of its last proposal for a
new collective-bargaining agreement I shall recommend that
the Respondent be ordered at the Union’s request, to rescind the
implemented terms and conditions of employment of its last
proposal and reinstate the terms and conditions of employment
which existed prior thereto and maintain in effect the terms and
conditions of employment in the now-expired collective-
bargaining agreement unless the Respondent and the Union
bargain to agreement or good-faith impasse, and in the event an
understanding is reached embody such understanding in a
signed agreement. See Winn-Dixie Stores, supra. Further, the
Respondent should be ordered to make whole unit employees
for any loss of earnings or other benefits suffered as a result of
the Respondent’s above unlawful action in accordance with the
Board’s decision in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest com-
puted as in New Horizons for the Retarded, 283 NLRB 1173
(1987). See also Florida Steel Corp., 231 NLRB 651 (1977),
and Isis Plumbing Co., 138 NLRB 716 (1962).28
Having found that the Respondent has unlawfully unilater-
ally subcontracted out work normally performed by unit em-
ployees and has laid off employees as a result of that subcon-
tracting, I recommend that the Respondent be ordered to cease
subcontracting unit employee work in the wheel cylinder de-
partment and on request, bargain with the Union, restore to said
employees such work subcontracted since February 1995, and
make whole employees for all losses incurred by them as a
result of such unlawful action against them from February 1995
to the present with interest as computed in the manner de-
scribed above. The Respondent should also be ordered to offer
immediate and full reinstatement to their former jobs, any em-
ployees laid off due to the subcontracting of the work discussed
above, displacing, if necessary, any replacements or, if these
jobs no longer exist, to substantially equivalent positions with-
out prejudice to their seniority or other rights and privileges,
and make them whole for any losses of pay or other benefits
suffered as a result of the discrimination against them with
backpay computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1980), with interest thereon computed as in the
manner prescribed in New Horizons for the Retarded, supra.29
Having found that the Respondent unlawfully unilaterally
combined job classifications in the subassembly department,
and combined job duties and created a CNC Cell in the wheel
cylinder department, I shall recommend that the Respondent be
ordered upon request to rescind such actions and bargain
collectively with the Union regarding this. The Respondent
should also be ordered to make employees whole for any loss
of wages or other benefits resulting from the Respondent’s
unlawful actions and to reinstate employees to their former
28 In addition, the Respondent shall make its employees whole for
any losses resulting from the Respondent’s failure to make contractual
welfare and pension fund payments in the manner prescribed in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980) enfd. mem. 661 F.2d
940 (9th Cir. 1981). Interest on any monies due shall be computed in
the manner prescribed in New Horizons for the Retarded, supra. The
method of determining any additional amounts due to benefit funds
shall be made as specified in Merryweather Optical Co., 240 NLRB
1213 (1979).
29 Id.
STANDARD MOTOR PRODUCTS 1497
positions before the combining of these job duties or classifica-
tions where requested by the Union, with reinstatement to their
former jobs where such unlawful action has resulted in layoff
or discharge as set forth above. Any backpay due thereunder
shall be computed in accordance with F. W. Woolworth Co.,
supra, with interest thereon computed in the manner prescribed
in New Horizons for the Retarded, supra.
Having found that the Respondent unlawfully, unilaterally
implemented a new group incentive bonus plan, I will recom-
mend that the Respondent, upon notice by the Union, rescind
this plan and bargain with the Union regarding any proposed
new group incentive bonus plan, and make whole employees
for any loss of wages and benefits suffered by them by reason
of the Respondent’s unlawful action with backpay computed in
accordance with F. W. Woolworth Co., supra, with interest
thereon as computed in the manner prescribed in New Horizons
for the Retarded, supra.
Having found that the Respondent unlawfully refused to
provide the Union access to its facility for a safety and health
inspection I shall recommend that on request the Respondent be
ordered to grant access to its facility by the International’s
Health and Safety representative designated by the Union, for a
reasonable period of time sufficient to inspect for health and
safety problems and at a time when such inspection does not
interfere with the Respondent’s operations.
Having found that the Respondent violated Section 8(a)(1)
and (5) of the Act by changing its plant rules by providing Ga-
torade to employees in working areas and by granting a bonus
meal (pizza) to certain unit employees for achieving production
goals, I shall recommend that the Respondent, upon request by
the Union, cease changing its plant rules by providing Gatorade
to employees in working areas and granting a bonus meal to
certain unit employees for achieving production goals without
first bargaining with the Union about this.
Because of the nature of the unfair labor practices found
herein, and in order to make effective the interdependent guar-
antees of Section 7 of the Act, I shall recommend that the Re-
spondent be ordered to refrain from in any like or related man-
ner abridging any of the rights guaranteed employees by Sec-
tion 7 of the Act. The Respondent should also be required to
post the customary notice.
CONCLUSIONS OF LAW
1. The Respondent, EIS Brake Parts, Division of Standard
Motor Products, is and has been at all times material an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, Local 376 are
labor organizations within the meaning of Section 2(5) of the
Act.
3. The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:

All production and maintenance employees employed by Re-
spondent at its Berlin, Connecticut facility, but excluding of-
fice and plant clerical employees, timekeepers, engineering
employees, draftsmen, professional employees guards,
watchmen, foremen, assistant foremen and supervisors as de-
fined in the Act.

4. At all times since 1962 International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America and Local 376, (the Union), has been the exclusive
collective-bargaining representative of the Respondent’s em-
ployees in the above appropriate unit pursuant to Section 9(a)
of the Act.
5. By unilaterally implementing the terms and conditions of
its last proposals for a new collective-bargaining agreement on
or about June 26, 1996, without having reached a lawful im-
passe the Respondent has been failing and refusing to bargain
collectively and in good faith with the exclusive collective-
bargaining representative of its employees in violation of Sec-
tion 8(a)(1) and (5) of the Act.
6. By unilaterally subcontracting work normally performed
by unit employees and laying off unit employees as a result of
that subcontracting without having reached a lawful impasse
and without affording the Union an opportunity to bargain with
respect to this conduct, the Respondent has violated Section
8(a)(1) and (5) of the Act.
7. By unilaterally combining job classifications in the subas-
sembly department and combining job duties and creating a
CNC Cell in the wheel cylinder department without affording
the Union an opportunity to bargain about this, the Respondent
has violated Section 8(a)(1) and (5) of the Act.
8. By unilaterally implementing a new group incentive bonus
plan without having reached a lawful impasse and without af-
fording the Union on opportunity to bargain with respect to this
conduct, the Respondent his violated Section 8(a)(1) and (5) of
the Act.
9. By refusing to provide the Union access to its facility for a
safety and health inspection without affording the Union an
opportunity to bargain with respect to this conduct, the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
10. By unilaterally changing its plant rules by providing
drinks (Gatorade) to employees in working areas; and by grant-
ing a bonus meal (pizza) to certain unit employees for achiev-
ing production goals without affording the Union an opportu-
nity to bargain with respect to this conduct, the Respondent has
violated Section 8(a)(1) and (5) of the Act in each instance.
11. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]